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Constitutional Law Outline Freedom of Expression  Philosophy and Policies of Free Speech o Marketplace of Ideas  Enables the search

for truth, and that all ideas, whether right or wrong, should be debated so that the truth will emerge y Some ideas that may cause harm are driven out, but the potential for harm is outweighed by the importance of free speech  There is unequal access to the marketplace because those with greater resources have a greater ability to spread their ideas y Leads to the marketplace being unfair or an uneven playing field o Micklejohnian Democratic Self-Governance  Speech about politics and matters of public concern deserve the most protection in order to preserve wise and informed voting y Issues arise in defining what speech is public and what speech is private o Private speech can have an effect on public speech by affecting a person s political decisions o Self-Fulfillment  Speech is valuable because when speaking, people realize their own identity y Self-realization  Concerns arise when that discovery harms others o Check on the Government  Free speech allows society to check abuses of power by officials y Press plays an especially important role in this o Tolerance  The US identifies itself as a tolerant society and tolerates speech that is different o Safety Value  Free speech allows people to blow off steam that might otherwise result in violence if it is repressed Symbolic speech doctrine o Symbolic speech is conduct that is expressive and can be protected at times  Arises when the speaker is trying to convey a message through actions o Two prongs:  Intent of the actor y Did they intend to convey a message?  Substantial likelihood that some members of the audience would understand the message as it was intended by the actor Lewd, Profane and Indecent Speech (Offensive)  



o Constitution prohibits a government from removing a word from the public discourse in an attempt to guard the public morality o Cohen v. California  Court overturned a conviction against Cohen for wearing a jacket that said, Fuck the draft.  One man s vulgarity is another man s lyric, and allowing censorship of such ideas, is contradictory to the protections of the 1st Amendment. y Drawing lines such as this would be, is a slippery slope y Words have a cognitive and an emotional function, and words are often chosen for their emotional force. y If a person did not want to see the message, they could avert their eyes  Dissent y Tried to label this as conduct and not speech o Analogized to Chaplinsky o Heckler s Veto  Suppression speech because it offends others by allowing the audience to stifle speech y Not allowed by the Constitution because this would allow a majority from silencing a minority Categorical Speech o Certain speech is of greater value and will likely receive greater protection  Two Levels: y High Value o Speech that is of great value in the marketplace y Low/No Value o The lower the value of speech, the more likely it will not be protected Possible Challenges o Void for Vagueness  If a person of ordinary and reasonable intelligence, looking at the statute on its face, would not be able to understand what speech is allowed or prohibited, the statute is unconstitutionally vague  Void because they give too much discretion to those charged with enforcing the statutes, which may result in unfair enforcement or a self-imposed chilling of speech o Overbroad  A statute sweeps of too much speech y Example would be an anti-obscenity law that included National Geographic or family pictures Unprotected Categories of Speech o Fighting Words  Speech that by its very utterance:


NY. while disrespectful. o Free speech is not absolute at all times. New Hampshire (only case that has upheld a fighting words conviction) o Court upheld Chaplinsky s conviction for violating a statute that prohibited offensive. derisive. and those words were not contributing to the marketplace and the social interest in restricting the speech outweighed any benefit that they offered. the Court held that burning a flag and stating We don t need no damn flag was not a fighting word because there was not a n immediate threat and the words.  ¢  Inflicts injury or emotional harm o Inherently inflammatory o Directed at a particular person or group of people  Face-to-face  Typically involves insults and epithets y Tends to incite an immediate breach of the peace o Likely to provoke an immediate violence response  Evaluate using the average listener with objective characteristics y ace y eligion y Gender y Age y Occupation o Police and school teachers are required to take more abuse 3-Part Test y Addressed to an individual or group y Words must be personally abusive epithets or insults o Likely provoke the ordinary person to retaliate y Evaluate in the context in which they are used o Do not consider whether the receiver is particularly sensitive or combative ationale: y Low value speech that is intended to harm rather than communicate an idea or opinion to the marketplace y Likely to lead to a breach of the peace Cases: y Chaplinsky v.  Purpose of the statute was to preserve the public peace y In Street v. were not inherently inflammatory y 3   ¡ . or annoying words after he told a police officer he was a God damned racketeer and a damned fascist.

Johnson o Johnson burned a flag in protest against policies of the Reagan administration. speech that actually causes violence of unlawful conduct is not always protected y Causation is necessary. and was convicted of violating a statute prohibiting anyone from destroying the flag in a manner that will seriously offend. I ll kill you because the statute was overbroad. Wilson. because it hinged on the government not doing what they wanted 4 . This was designed to antagonize others.o A mere possibility of violence is not enough y In Gooding v.  There was not an immediate danger. but can be difficult to find  Modern Rule: y Free speech does not permit a state to forbid or prescribe advocacy of the use of force or violation of the law. (Viewpoint based censorship) o Government cannot prohibit expression simply because society does not approve of the idea or finds the speech offensive. and is not an essential part in expressing ideas o Incitement to Violence  While the abstract advocacy of violence is protected. White son-of-a-bitch. except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action y Elements o Intent  Must intend to incite violence or lawlessness o Imminent violence o Lawless Action o Probability (likelihood)  Cases: y Brandenburg v. Statute prohibited the use of abusive language that tends to cause a breach of peace. o Limited somewhat by modern cases that require that the statute be substantially overbroad y Texas v. Ohio o Court overturned the conviction of a KKK leader who encouraged followers to do something and take action if the government didn t give them what they wanted.  State cannot use its power to foster certain views simply because it does not like some views o Dissent  Flag burning is not another idea and could the message could be conveyed in many different manners. the Court overturned a conviction for saying.

a conviction was overturned because the imminent element was not satisfied after Hess stated they would take the street later. disloyalty. because there was no intent y Harceg v. the Court held that NBC could not be liable for the rape of a girl after a group of young boys emulated what they had seen on TV. US o Court upheld the conviction of Shaffer after he mailed a book that spoke negatively about the war effort because the action had a natural and probable tendency to produce the result prohibited  Presumed Intent is when courts will presume the actor intended the natural and probable consequences of their actions y Schenck v. Indiana. mutiny. o Brandenburg did not control because the publisher had intended the book to be used by criminals 1917 Espionage Act § 3 y Made is a criminal offense. Paladin Enterprises. o Clear and Present Danger Test  Ask whether the words were of such a nature as to create a clear and present danger that they would bring about the substantive evils that Congress feared. US o Court upheld Schenck s conviction for distributing leaflets that encourage people to resist the draft. while the nation is at war to: o Willfully make or convey false reports or statements with the intent to interfere with military success of the US or promote the success of the enemy o Willfully cause or attempt to cause insubordination. Court presumed that he had intended people to dodge the draft. Hustler fund that Hustler was not liable for a suicide because there was no intent and the action was not imminent y In Rice v. y In Olivia N v. or refusal of duty o Willfully obstruct the recruiting or enlistment y Shaffer v. it was unconstitutional as overbroad y In Hess v. which he analogized to slavery and conscription. the Court held that a book publisher could be liable after a man killed another and followed the instructions in a book about being a hit man. NBC.  Was not preparing the group for action o Because the statute prohibited speech that was not meant to incite to violence. 5 .  Compared this to yelling fire in a crowded theatre. which was prohibited.

o A reasonable person would have found this to be a serious expression of intent o Didn t matter of the violence would come from the ACLA. but actual threats of violence are not  Test: y Serious expression of intent to commit unlawful violence to a particular group of people or individual o Statement can be in a variety of mediums and does not have to be face-to-face  Online. loses that protecting during wartimes o True Threats  Abstract advocacy of violence is protected. fliers. if they put a rifle in my hands the first person I want in my sights is LBJ was not a true threat. or even intend to  Enough that there was intent to communicate and instill fear  Cases y Watts v. which would be protected during times of peace. o Even though cross burning does have an historical significance of intimidation. and that some speech. the Court upheld a conviction after wild-west style wanted posters with doctors who performed abortions were posted online. and was political hyperbole  True threat depends on the content and context of the speech y In Planned Parenthood v. or from third parties y In Virginia v. a cross burning statute was struck down because the statute included the cross burning as prima facie evidence of intimidation. American Coalition of Life. US o Court held that the statement. 6 . In this case. Black. and some had an X placed over those who had been killed.y There is a wartime exception to speech. intent cannot be presumed. posters o Does not have to be a literal threat y Whether a reasonable person would foresee that the statement would be interpreted by those to whom the communication is communicated as a serious expression of intent to harm o Not necessary for the speaker to be able to carry out the threat. there was no evidence that any Blacks were intimidated because it occurred on private property.

who is looking at the work as a whole y Typically involves sexually-explicit material o Prurient is defined as a morbid or shameful interest in sex y Analyzed using the Miller test  History: y Commonwealth v. Hicklin defined obscenity as any with a tendency to deprave and corrupt those whose minds are open to such immoral influences  Under this standard. was initiated by an individual to suppress obscenity. Sharpless (1815) was the first case in the US where it was found to be obscene to exhibit. y Court adopted a new standard: o Whether to the average person. Even if it was symbolic speech. even isolated passages in a work could be found to be obscene y In 1933 a new standard was adopted that looked at the effect the work. taken as a whole. applying contemporary community standards. had on the average person o US v. and that the people have the ability to reject noxious ideas  Miller v. appeals to the prurient interest  Sex and obscenity are not synonymous.o Thomas dissented because he viewed cross burning as conduct and not expression. and eventually most states had anti-obscenity laws o Regina v. Ulysses  Roth v. it would be upheld because the presumed intent could be rebutted. a picture of a nude couple o Up until the Civil War there were very few serious efforts to restrict obscene speech y The Comstock Act. when taken as a whole. and the state still must prove the other elements o Obscenity  To be obscene it must appeal to the prurient interest when viewed by the average person. and obscene material deals with sex in a way that appeals to the prurient interest y This allowed for any idea that has even the slightest redeeming social value to be protected by the 1st Amendment y Dissent (Douglas) argued that courts and legislatures should not be the ones to determine what obscenity is. and it could be regulated. California 7 . US (1957) y Roth was convicted of violating a federal statute prohibiting any person from mailing any obscene publication. for profit. the dominant theme of the material.

or scientific value y Dissents o Douglas stated that it is improper for a court to define what is obscene.  Miller was convicted of violating an obscenity statute after he mailed adult material that showed pictures and drawings of sexual acts. excretory functions. and lewd exhibition of genitals o Whether the work. and that it should be left to the people o Brennan dissented because he thought that the statute was overbroad and invalid on its face In Stanley v. actual or simulated o Representations of masturbation. the Court held that private possession of obscenity could not be criminal y Does not apply if it is child pornography Variable Obscenity y A state can regulate more when children have access than with adults. in a patently offensive way. So something may be obscene when shown to children. serious. political. lacks serious artistic. applying contemporary community standards. when taken as a whole. and each state/community has a different standard y Leads to trials in more conservative areas y While the standard can vary between jurisdictions. The Court formulated a 3-part test: o Whether the average person. would find that the work as a whole. sexual conduct as defined by the state law  Must be adequately defined by the statutes y Not vague y Examples: o Representations or description of ultimate sex acts. the limitations of the 1st Amendment do not y Community is where the item was downloaded or purchased  Contemporary allows for changing values  Work as a whole creates concerns when dealing with internet sites (single page or entire article) o Whether the work depicts or describes. literary. normal or perverted. but not obscene when showed to an adult y 8 . Georgia. appeals to the prurient interest  Average person does not include children  There is not a national standard.

and value is so minimal (if any value at all) y Not tested on a case-by-case basis like obscenity  Determining whether child pornography is obscene: y US v. Knox held that a child does not have to be nude. exhibiting. o Do not have to find that the material relates to the prurient interest of the average person o Does not have to be portrayed in a patently offensive manner o Do not have to consider the work as a whole  Ashcroft v. the state has an interest in protecting children and regulating material more heavily when children are the target o Butler v. and listed several factors to consider o Whether the focal point is on the child s genitals or pubic area o Whether the setting of the depiction is sexually suggestive o Whether the child is depicted in an unnatural pose o Whether the child is fully or partially clothed. or selling material depicting sexual performances featuring children under 16 after he sold a video to an undercover officer. promoting. Michigan overturned a state statute that prohibited the sale of lewd material that might corrupt youth because the adult population shouldn t be forced to read only that which is suitable for minors  State has more power over minors than adults  Parents have the ability to direct the raising of their children. and this can be supported by laws making that easier  State has an interest in the well-being of its youth and can protect them from material that might prevent their growth into well-developed citizens o Child Pornography  Not protected speech because the harm to children is so great. y Court upheld the conviction because the state interest in protecting children from physical and psychological abuse is so strong because there was evidence that showed that the materials produced were permanent and the only way to stop more films from being produced was to close the distribution. Free Speech Coalition 9 . or nude o Whether the depiction suggests sexual coyness or willingness o Whether the depiction is intended to elicit a sexual response from the viewer  New York v. directing. Ferber y Ferber was convicted of violating a statute that prohibited producing.o Cannot reduce the adult population to reading or viewing only those thing which are acceptable for children.

C. cartoons) because of the ideas they communicate. including simulated or computer generated.S. 1464 gave the right to the FCC to regulate: y Obscenity o Can be regulated at anytime since it is unprotected y Indecency o Can be regulated at certain times of the day o 2-Part Test  Does the content depict or describe sexual or excretory organs or activities y Doesn t cover racial or sexist comments  Are the words patently offensive as measured by contemporary standards for the broadcast media y No distinction for geographic regions. and to allow this would open the door to manner other innocent things becoming prohibited (video games. o Where Ferber was aimed at how the images were produced. The state interest in protecting minors from exploitation and abuse was not present when the depictions were computer animated. dwelled upon.C. y Court struck this down as unconstitutionally overbroad because it stretched Farber too far. y Can t abridge protected speech as a means to controlling unprotected speech  Current Issue: y Sexting o In Arizona. a set standard for the entire nation y Factors: o How graphic or explicit? o Is it repeated. a court found that it was not unlawful to view or possess a child picture if it was not solicited and reasonable steps were taken to destroy the picture Regulated Speech o Indecency  Material that does not reach the point of being obscene  18 U.S. 2256 that prohibited any depiction of sexual conduct by a minor. and preventing virtual pornography was not related to the protection of children. Involved a challenge to 18 U. or fleeting? o What is the purpose of the language? o Bum Fights may be a new area for protection y Profane Language o Can re regulated at certain times of the day y 10 . this was aimed at censoring an idea.

and stated that any use of the words fuck or shit could be actionable because they are some of the most vulgar in the English language y Fox Television Stations aired Bono and Cher saying fuck United States v. Stevens y Court overturned a federal law making it a crime to produce or sell depictions of animal cruelty. and stated that animal cruelty is not a new area of unprotected speech. as well as the location o A substantial excerpt and context of the material Safe Harbor y Between 6am and 10pm no indecent material can be shown on public airwaves o Does not apply to cable and satellite channels because those are private and the government only has an interest in regulating public airwaves FCC v. Court struck down the law as being overbroad. and there are very few ideas that could be expressed in a less offensive manner. and held that indecent speech can be regulated because the primary effect would be on the form and not on the content of the speech. o The right to be left alone in one s home is a greater right than free speech. o While there is a history of preventing animal cruelty. y Court agreed with the FCC. The FCC called that speech indecent but not obscene.    o Originally limited to blasphemy. Pacifica y A father complained about a radio station broadcasting Carlin s 7 dirty words act at 2pm. especially when children are in the audience and more prone to repeat things they hear than what they read  Distinguishing from Cohen because a child likely wouldn t be able to read the word y Dissent by Brennan claimed that the act of listening to the radio is part of the public discourse and could be turned off. The original intent of the law was to prevent crush videos. there is not a history of making it criminal to possess the videos. but expanded to cover language that is so grossly offensive to members of the public who actually hear it as to amount to a nuisance y To make a complaint: o Citizens must file a complaint that contains the call sign or frequency of the station o Date and time of the broadcast. and this violated the principal from Butler by reducing the adult population to only that which is suitable for children In 2004 the FCC amended this ruling. and said that it could only be aired at certain times. 11 .

claimed that this will allow advertising of prices for items that have long been thought desirable to discourage (alcohol. does the regulation directly advance that interest? y Are there less restrictive means to meet that end? o Is it narrowly tailored? o If yes.o This is different from Ferber because animals are hunted and slaughtered for food so the interest in protecting them isn t as strong. educational. the majority ignored the scientific. cigarettes) and the state legislatures should be the one s to determine what the flow of commercial information should be. The purpose of this law was to ensure professionalism of pharmacists and prevent a price war. and not prescriptions  Central Hudson Gas v. or historic exception that was built into the statute o Commercial Speech  History y In Virginia Board of Pharmacy. and not suppressing speech. y Rehnquist. the Court held that speech does not lose its 1st Amendment value because money is spent to project it or communicated to propose an economic transaction. dissent. and not false or misleading? y Is the government interest substantial o If yes. Public Service Commission of New York y Commission allowed electric utilities to engage in informational advertising but prohibited them from engaging in promotional advertising designed to stimulate the use of electricity. and public issues. social. o By relying on hunting. and manner restrictions o False or misleading commercial speech o Proposed illegal transactions  Test: y Is it commercial? o Does it propose a transaction and is the interest of the speaker or recipient economic? y Does the communication concern lawful activity. it is unconstitutional  Virginia State Board of Pharmacy y Court invalidated a Virginia prohibited pharmacists from advertising prices. and animals don t have a conscious recognition of being abused or be subject to seeing it again y Dissent by Alito. o Enlightening the public should only apply to political. but this was 12 . But did find that it could be regulated: o Time. place. viewed this as being analogous to Ferber because the law was aimed at preventing conduct.

doesn t think any regulation on advertising is permissible o Prior Restraints  One of the primary purposes of the 1st Amendment was to prevent prior restraints on speech. except for tags that were displayed within the store and not visible from the streets and the state interest of encouraging temperance could have been advanced in other ways. Colorado. National security is too broad and vague  Gag Orders 13 . Rhode Island y Court overturned a statute that prohibited advertising of prices of alcohol. concurring. whereas other prohibitions are speak first and bear the consequences later y In Patterson v. US y US tried to prevent the Times from publishing a Pentagon report. o Legislatures can t regulate truthful and nonmisleading information for paternalistic reasons. the Court held that the Constitution prohibits all prior restraints y 3 scenarios where prior restraints could be valid (Near v.overturned because it was overbroad (didn t account for the business it would attract from those using less efficient methods) and could have been advanced in other ways (conservation)  44 Liquormart v. the government can restrict speech if it can show that the speech: y Inevitably y Directly y Immediately y Cause the occurrence of an event imperiling the war effort and safety of troops  NY Times v. or prohibiting speech before it occurs. y Thomas. MN) o Times of War o Obscenity o Incitement to Violence  Basic Doctrine when the media has: y Lawfully obtained y Truthful information y About a matter of public significance y Any prior restraint of speech will be presumptively invalid y Unless the government can show a compelling interest o Wartime exception  During a war. but the Court held that the elements were not satisfied and they could not show a danger.

 Other Concerns y Court has held that a contract is a permissible way to protect a government interest o CIA contracts have a provision in them that prohibits employees from publishing accounts of their work o Content-Based Restrictions  There is a strong presumption against any restriction that singles out certain topics or ideas. Stuart y A judge in a highly publicized murder trial in a small town issued an injunction that prevented the press from giving accounts of confessions made by the murderer in order to maintain an impartial jury y The Court overturned this because less restrictive means were not considered (changing location). Schwarzenegger (9th Circuit) y A California law that prohibited the sale of violent video games to minors was found to be unconstitutional because the state could not prove that violent games contributed to antisocial activities and that there were other alternatives available (ESRB. or prohibits certain conduct but leaves others unregulated y Different from viewpoint based laws that only regulate one side of the issue o Viewpoint based laws are always unconstitutional y Strict scrutiny is applied o Necessary to serve a compelling state interest  Necessary y Harms are real and not speculative  Compelling state interest y Interest of the highest order o Narrowly tailored  No less restrictive means available  Video Software Dealers Association v. parental controls) o Content-Neutral Regulations  Time. Place and Manner restrictions y Generally are valid if: o Narrowly tailored o Serve a significant government interest o Leave ample other channels of communication y 14 .Courts are allowed to prohibit the press from publishing articles relating to a case at certain times if certain elements are met: o Is the restriction justified?  Pervasive publicity o Are there less restrictive methods? o Would the restriction be effective?  Nebraska Press Association v.

They found that it served a legitimate interest. The Court struck down this statute because the law acted directly on the intimate relationship of husband and wife. the government has the right to regulate o Government can regulate any areas unless the Constitution says otherwise 15 . place and effect from unreasonable searches o 5th Amendment  Right against self-incrimination th o 9 Amendment  Enumeration of some right rights shall not deny the existence of others  Origin of the Right o Griswold v. y The dissent claimed that this violated the 1st Amendment because it completely blocked the views of an alternative teacher s association and there was not a compelling state interest to justify Right to Privacy  There is no enumerated right to privacy in the Constitution. but the Court has found a general right to privacy encompassed within several other amendments o 1st Amendment  Right to associate rd o 3 Amendment  Prohibition against housing soldiers in times of peace without consent th o 4 Amendment  Right to be secure in person. and Griswold was fined for violating this statute. Family and doctor is also a sacred relationship. Connecticut  Connecticut prohibited the use of any contraceptive.   Phelps v. Gilleo. the Court held that a law that prohibited political signs because it did not leave ample alternative means of communication open In Perry Educators the Court upheld a school districts decision to allow the Perry Educators Association to use the school mail system. which was typically reserved for school business only. Roper y Court found a regulation that banned protesting at funerals unconstitutional because there was not a significant interest in being free from unwanted communication o Different when it is in public locations as opposed to a home In City of Ladue v. y Marriage relationship is within the penumbra of the privacy amendments because it is older than the Bill of Rights  Dissents y Black says that because privacy is not mentioned in the Constitution. which is considered sacred and fundamental.

Population Services International involved a New York law that prohibited anyone other than licensed pharmacists from distributing contraceptives. Stewart says that it is uncommonly silly. especially since the Constitution does not speak to it y Rehnquist argued that abortion is not a fundamental right and that anti-abortion statutes were common for the last century o Maher v. Law which prohibited the distribution of contraceptives to unmarried persons was a violation of the Equal Protection Clause because it provided dissimilar treatment for married and unmarried persons  Carey v. Court held that. White says abortion should be left to the states in the interest of federalism. the abortion decision must be left to the judgment of the woman and her doctor s advice y During the 2nd trimester. and regulate. the state can regulate abortion in ways that are reasonably related to the mother s health o This only applies if the mother s health is the reason for the regulation y After the point of viability. and even prohibit abortion o Court determines that the Bill of Rights only applies to actual born persons  Dissent. and Roe. Baird. after Griswold. the Court held a Mass. unless the mother s life was at stake because the Constitution. governments could not intrude into matters of childbearing without a justified interest y Basically meant that there can be no regulation of contraceptives Abortion o Roe v. the state has an interest in protecting the potential human life. All that is required is that states not interfere with fundamental liberties. y States can encourage alternatives to abortion as it does not infringe on the right to choose y 16 . The interests Texas was promoting were the health of the mother (compelling after the 1st trimester) and the preservation of prenatal life (compelling interest at viability) and a woman s privacy y Court found that the 14th Amendment is broad enough to cover a woman s decision to terminate a pregnancy  The Court developed a 3-tromester framework: y During the 1st trimester. but that by itself doesn t make it unconstitutional o Subsequent Cases  In Eisenstadt v. did not require that the state provide abortions. Wade  Texas had a statute that prohibited abortion except for the purpose of saving the life of the mother. Roe  Court upheld Texas decision to not grant Medicaid benefits for abortions.

but rejects the trimester framework y Upheld because of the benefit of regulating medical practices y No longer subject to strict scrutiny. especially those from abusive relationships y Reporting requirements were imposed on facilities performing abortions  Court upheld the central holding of Roe. Casey  Pennsylvania had a law that required: y Women give informed consent prior to the abortion procedure o Upheld y Be provided with information 24 hours prior to procedure o Upheld. which led the Court to believe that it was not a fundamental right. Scalia says any regulation must only pass rational basis because this is not a fundamental right and not in the Constitution y Rehnquist believes that the talk of stare decisis is dicta and irrelevant  Note: Stare Decisis y Has the central rule of the prior case proven to be unworkable? y Could the limits on the state be removed without harming those that have relied on it? y Has there been a change or evolution in the law or societal values? y Has there been a change in the premise of the facts? Sexual Intimacy o Right to be free from governmental intrusion into areas of private sexual intimacy o Bowers v. Court looked to history and found that sodomy has been largely prohibited since ancient times. McRae applied the same rational to the denial of federal funds for abortions unless the mother s life was at risk o Planned Parenthood v. Brennan claims that their indigency will make them feel that they have no other choice but to carry the baby to term. but does place a slight burden y Minor must have the consent of the parent o Upheld y A married woman must sign a statement she notified her husband o Invalid. and now look to whether a state measure constitutes an undue burden on a woman s right to have an abortion prior to viability  Dissent. y 17 . This infringes upon the right of privacy by using financial pressure to influence women to choose not to have an abortion performed. Used the rational basis test because the right to privacy was not implicated  Dissent.  Harris v. because it placed too much of a burden on women. Hardwick  Court upheld Bowers conviction for violating an anti-sodomy statute that prohibited sexual acts with persons of the same gender. which would just serve to continue the cycle of poverty.

the Court applied a rational basis analysis and determined that the state has a rational basis in preserving life and requiring safeguards connected to that interest. and intimate conduct y The Constitution allows homosexuals to enter into relations with whomever they choose  Absent a real harm by action. and presumes an autonomy of self that includes freedom of thought. Director of Missouri Department of Health y Because the right to die is not a fundamental right. and that they have no business being involved in this issue and it should be left to the states y Because homosexuality is not deeply rooted in the Nation s history (emerging awareness does not establish a fundamental right). Texas  Lawrence was convicting of violating an anti-sodomy statute. expression. The parents in this case wanted to withdraw life support from a daughter who was in a permanent vegetative state y 18 . Earle. the moral disapproval of a legislature is not a sufficient justification to uphold a law that intrudes upon: y Individual s decisions by married or unmarried couples y That concerns the intimacies of their marriages y Because such liberties are protected by the Due Process Clause  Narrow holding: y Does not involve minors y Does not involve persons who might be injured or coerced y Does not involve public conduct or prostitution y Does not involve whether the government must give formal recognition to any relationship that homosexuals enter  Dissent. and the Court overturned his conviction y When looking at societal views towards homosexuality it became clear that the holding of Bowers had been weakened  Liberty protects the person from unwanted intrusions into a dwelling or private place.  Other courts have held the opposite Right to Die o Right to Refuse Treatment  Is there a fundamental right to refuse life-saving medical treatment?  Cruzan v. a district court in Texas struck down a statute prohibiting the sale of sex toys because the main reason for enforcing it was the moral judgment of the legislatures. belief. it is not a fundamental right and a regulation must only be rationally related o In Reliable Consultants v. Scalia believes that the Court has taken sides in the culture war. Fundamental Liberty Test asks whether the right/act is so deeply rooted in the Nation s history or tradition o Court says no o Lawrence v.

the Court upheld a statute that allowed people to refuse lifesaving treatment but prohibited doctor assisted suicide. Quill. they are defining life. Scalia thinks that the courts should not be involved in this. y Did not violate the EQP even though it treated similarly situated people differently Equal Protection Clause y  What is Equal Protection? o Claims that involve challenges to laws that allocate benefits or impose burdens on a defined class of individuals and the plaintiff alleges that the government has drawn a line between favored and disfavored groups  The classification is based on some irrelevant characteristic o The question is whether. The liberty interests could not be extended to a third party to kill one s self. protecting the integrity of the medical profession and protecting those who were vulnerable. due process has been satisfied because the right to die is not traditionally recognized.  In Vaco v. under the circumstances. o Right to Assistance in Dying  Is there a fundamental right to have a doctor assist in taking your own life?  Washington v. No benefit will be given to society by not allowing her to die o Stevens does not think that the measures chosen are rationally related to the desired end. y Dissent. The state had an interest in preserving life. the classification is permissible:  How has the government defined the group being benefitted or burdened?  What is the goal that the government is pursuing?  Is there a sufficient connection between the means the end? o Types of Classes  Suspect Class y Strict Scrutiny (interest of the highest order and narrow tailoring) o Race o National Origin y Intermediate Scrutiny (important government interest and substantial relation to that interest) o Gender o Religion y How to determine a suspect class 19 . but since they are. Brennan does not find a state interest that outweighs an individuals right to be free from unwanted medical intervention. The policy was rationally related to those ends. Glucksberg y Court did not find a fundamental right to receive assistance in committing suicide because it had no roots in the tradition and history of the nation. Instead of preserving life.Concurrence.

Moreno. A legitimate interest cannot be based upon an irrational. Court held that a desire to harm a politically unpopular group is not a legitimate interest 20 . Beazer y Court upheld the NYTA s policy of not employing methadone users out of fear that it would lead to passenger harm because classification served a legitimate interest (protecting citizens) and was a policy choice of the legislatures that did not classify based on a particular trait or affiliation. and as long as the means are not arbitrary. but this could change in the future o Holder s memo to Boehner Rational Basis Review o Rational Relation  A lot of deference is given to the states. o City allowed elderly homes to be built in the area. White believed that the methadone users who had successfully completed the program were just as employable as those who had never been in the program and no evidence was presented to justify the different treatment. Cleburne Living Center y Court struck down an ordinance that didn t allow a home for the mentally retarded to be built in a certain area because of the potential for harassment by school children and a negative attitude from neighbors. Because the purpose of the Act was to raise nutrition levels. only providing food stamps to households was not rationally related to that end. o Does the group have a history of discrimination? o Do the individuals exhibit immutable.  In Romer v. y Dissent. Evans the Court struck down a statute that prohibited local governments from enacting anti-discrimination measures that protected nontraditional relationships.  In US Department of Agriculture v. and distinguishable characteristics? o Is the group a minor or politically powerless?  Non-suspect Class y Rational basis standard of review o Must show that there is a legitimate government interest and that the means are rationally related to that interest y Homosexuals. unsubstantiated fear or stereotype. so the only explanation for this policy was the prejudice. the Court struck down a classification that excluded members from receiving food stamps unless they only lived with blood relatives. obvious. it will likely be upheld  NY Transit Authority v. o Legitimate Government Interest  City of Cleburne v.

y Similarly the Court upheld an OK law that prohibited anyone other than a licensed optometrist to replace or repair glasses because there was no invidious discrimination Actual Purpose Review o In McGowan the Court held that the Constitutional safeguard is only offended if the classification rests on grounds that are wholly irrelevant to the achievement of the desired objectives o Building on that. and upon being returned to Missouri he was sold to Sanford. y Government is obliged to protect the property of the slaveholders y 21 . Scalia believes that the people should have the power to legislate. Clover Leaf Creamery. it was justified by the interest in limiting distractions to drivers. deference will be given to the legislature y Railway Express Agency v. and that slave holders would be deprived of property without just compensation if slaves were deemed free if ever taken to a free state. but never expressly endorses slavery either o Dred Scott v. in Minnesota v. the court found that the state s stated purpose of environmental protection was sufficient  States don t have to convince the Court of the correctness of their determinations. the Court upheld a statute that required that milk cartons be made of pulpwood. Sanford  Scott was a slave who had been taken to Minnesota. New York involved a challenged to a statute that prohibited vehicles from displaying advertisements unless it was for their business. just that there is some evidence to support the classification Equal Protection and Slavery o Many provisions within the Constitution support slavery (3/5 apportionment).  Court determined that he was not a citizen and did not enjoy the constitutional freedoms others. but often times the classification is not perfectly tailored y Underinclusive o Includes too many people and some shouldn t be included y Overinclusive o Classification leaves people out.  Dissent. This could have been over and/or Underinclusive. when they should be included  Court does not require perfect tailoring. if the interest is legitimate. Even though the purpose was to boost the Minnesota pulpwood industry. and generally. He claimed that the sale was a trespass upon his person because he was a free person after being taken to Minnesota. and the animus that the Court says motivated this statute is the same animus that has produced many laws o Means-End Nexus  A classification must bear some connection to a legitimate government interest. which was a free territory.

and wouldn t allow Blacks to use the White facilities o Plessey v. because the question was. the Court heard cases involving higher education. which led the court to announce that desegregation must proceed with all deliberate speed 22 . violated the EQP. in McLaurin v. and the Black students were denied the same education. separate but equal has no place. and the intangible qualities were unequal. Oklahoma State.  In Sweatt v. Palmer. Board of Education  Court held that in the field of public education. which he says are inferior to Blacks. and laws should be color-blind. many states (particularly in the South) passed laws that provided different facilities for Blacks. Ferguson  Louisiana required that railroad companies provide equal but separate cars for Whites and Blacks. And y Once a state has provided a right. while maintaining and all-White law school. Chinese. it must make it available on equal terms. and that separate facilities are inherently unequal.  o The Emancipation Proclamation and the 13th Amendment prohibited slavery and involuntary servitude in all states of the nation Separate but Equal o Following the 13th Amendment. and overturned separate treatment in those areas. Education is the most important function of the state and without equal access to education it is doubtful that a child may reasonably be expected to succeed in life. Canada. and the 14th Amendment does not permit authorities to know the race of those entitled to protection. and equality of treatment was still granted under these systems. o Brown v. the Court held that the creation of a separate law school for Blacks was unconstitutional because the opportunities were not the same. and education is much more important now then at the time of the 14th Amendment o Brown II  After Brown. are not treated in the same manner.  Dissent. Any feelings of inferiority exist only in the minds of those that choose to believe it.  Gaines v.  Finally. but not the other way. the Court found that requiring Blacks to sit in special areas of the rooms violated the EQP because it deprived Black students of the discussions and exchange of ideas that were necessary. school districts were very hesitant to desegregate. Desegregation o Before getting to Brown. what services does Missouri provide to White students and deny to Black students.  Court upheld this statute because they didn t think that the 14th Amendment required the abolition of distinctions based on color. and made it a criminal act for a person to use the car designated for a different race. Harlan claims that the purpose of this law is to exclude Blacks from the White car. the Court held that paying Blacks to attend school outside of the state.

less discriminatory means of achieving the same goal o Strauder v. whether citizens or not. but is not necessarily unconstitutional. the burden can be greater. Court determined that his violated the 14th Amendment because it denied Blacks the same rights and opportunities as other races o In the only case that has upheld a classification based on racial lines. but racism can never justify y 23 . and during times of war. the Court did state the Constitution does not require that every school in a district reflect the racial composition of the district as a whole.  Interdistrict Remedies y While districts do have the power to bus students because communities within that district. o Milliken v. y Court did state in Cooper v.  Court did make an allowance for a district to request more time. to report to internment camps. They are subjected to the most rigid scrutiny. that the public necessity and military emergencies of WWII justified a military order forcing all persons of Japanese ancestry. Local authorities have the power to fashion relief that accounts for the districts. and some people may bear that burden more than others. While upholding this practice. that force and violence are not legitimate reasons to not comply with the desegregation order. the Court stated. the state does not have the power to transport student between districts in order to comply with Brown. West Virginia  An all-White jury convicted Strauder of murder and WV had a statute that prohibited Blacks from serving on juries. Aaron. but can be justified by a pressing public necessity. Korematsu. Hardships were a part of war.  And restriction that curtails rights based on race is immediately suspect. but they still must evidence a prompt and reasonable start. but they bore the burden of proving that it was necessary and requested in good faith. o Other Issues:  Busing y Court upheld the use of busing to transport children between schools to comply with the desegregation. Bradley Race-Based Classifications o Strict scrutiny will apply anytime there is a classification based on race or national origin o Strict Scrutiny (almost always fatal to the state)  Compelling state interest y Must be an interest of the highest order  Narrowly tailored y Must not be any other.

and that this gives too much deference to the military. Was not applied in a discriminatory manner either. The test was upheld because there was not a discriminatory purpose because it was designed to test competency for the job. a prosecutor s use of challenges to exclude those who spoke Spanish was upheld because it served the interest of only allowing those speakers to follow the court interpreter s statements and not rely on their own understanding. The exclusion of all persons of Japanese ancestry goes too far and is not supported by reason or logic o In Loving v. y Even though the challenges might result in disproportionate treatment. that did not turn the actions in an EQP violation o If the statute is neutral on its face. NY. Virginia. The evidence showed that only those with Chinese ancestry were denied permits. Murphy claims that this falls into the category of racism. While there was not a  24 .  It was clear that the only purpose of this was done for racial reasons. Facially Neutral Classifications that Disadvantage Minorities o Generally rational basis applies  In order to invalidate. strict scrutiny is applied  Yick Wo v. not citizens Race-Based Classifications Designed to Benefit Minorities (Affirmative Action) o The standard of review does not change based on the race of those burdened. Davis y Court upheld a qualifying test for police officers after evidence was submitted that showed Blacks failed more frequently than Whites. but allowed the other races to miscegenation. o 14th Amendment applies to persons. and there was not a compelling state interest to justify the unequal treatment. the Court invalidated a Virginia statute that prohibited Whites from marrying persons from any other race. but is relevant y Must also prove that there was an awareness of and that the plan was chosen because it would have that effect  Washington v. a discriminatory purpose must be shown y A discriminatory effect will not automatically invalidate a law.  In Hernandez v.  Dissent. Any classification that burdens a particular race will be subject to strict scrutiny  Past societal discrimination is not a compelling state interest to justify an affirmative action plan o Cases:  UC Regents v. Hopkins y Court reversed a conviction of a Chinese immigrant who was convicted of operating a laundry in a non-brick building without proper approval. Bakke involved a challenge to the Davis medical school policy that reserved a quota of seats for Black students. Court found this to be evidence of invidious discrimination. but is applied as a means to invidiously discriminate against certain racial groups.

with remedial measures given greater deference o Ginsburg follows similar reasoning and says that affirmative action is aimed at removing the lingering effects of racism and the decision stifles that effort Race and College Admission o Strict scrutiny applies whenever there is a classification based on race  Diverse student bodies can be a compelling state interest  Narrowly tailored y Cannot set a quota. This was struck down by the court based on 3 considerations: o Skepticism  Whenever race is the criteria.  Adarand Contractors v. and strict scrutiny should only apply to invidious discrimination. and a plan can t be designed to reverse past discrimination. which would lead to the same results in federal. Croson: Court struck down a program that required all contractors subcontract at least 30% of the services to minority businesses.  City of Richmond v. the controlling opinion stated that strict scrutiny would be used whenever there is a race-based classification. strict scrutiny applies o Consistency  All racial groups should be treated equally and the same standard of review used regardless of which race was burdened or benefitted o Congruence  5th and 14th Amendments offer the same protection and should be treated the same. y The purpose of strict scrutiny was to smoke out illegitimate uses of race y Dissent claimed that remedial measures should be subject to intermediate scrutiny. All races should be treated equal. but seeking a critical mass is valid y Race can never be the sole factor o Grutter v. majority opinion. Bollinger  Michigan had an admission program that considered the race of its applicants in order to ensure that it had a critical mass in order to enhance educational 25 . Stevens believes that there is a difference between remedial measures and invidious actions and they should be treated differently. Pena y A federal law gave incentives to contractors that subcontracted part of their work to certified small businesses that were controlled by minorities. state and local cases y Dissent. This plan denied some citizens the right to compete for public contacts.

but the means were not substantially related to this because it did not prohibit the drinking of the alcohol. and because race was not the only factor. Happersett. but the right to vote was denied until the 19th Amendment in 1920  As late as 1961. Rehnquist did not think that gender classifications deserved a special standard because there was not a history of discrimination. and the legislature was in a position to determine whether there was a legitimate connection between males and drunk driving. the Court upheld a jury selection process that excluded women from serving unless they affirmatively indicated a desire to serve o Craig v. The state bore the burden of showing the important interest in maintaining the segregation but was unable to do so 26 . quality.  Dissent. even after applying strict scrutiny. and the compelling interests are not related to student studies y Thomas says this is doing more harm than good because it is placing questions over each Black student on their merits.  Court upheld the policy. Rehnquist doesn t think strict scrutiny was property applied and questions why only Blacks had to achieve a critical mass y Kennedy also didn t think strict scrutiny was properly applied because too much deference was given y Scalia argued that this simply prolongs affirmative action. The statute did not prohibit consumption. which had been run as a maleonly school for 130 years. Virginia  Court ordered Virginia to desegregate VMI.  Court invalidated the statute because the statistical evidence was not sufficient to prove that there was a connection between the interest and the statute. Boren  OK allowed women to purchase 3. y Statistical interest does not equate to a real world significance  Dissent. The purported interest was to increase safety on the highways by reducing drunk driving. The interest in a diverse student body was compelling because it would lead to greater racial relations and understanding. but didn t allow men to purchase it until 21. Wants to leave Blacks alone Gender Classifications o Any classification based on gender is subject to intermediate scrutiny:  Important government interest  Statute must be substantially related to the state interest o History  Women were acknowledged to be citizens and persons within the meaning of the 14th Amendment in Minor v. it was narrowly tailored. Grutter challenged this law because several inferior minority students were admitted over her. and the courts should defer to their judgment o Untied States v. The interest was important.2% beer at the age of 18.

and because there was no redemption once the process was completed.  Skinner v. Scalia did not think the Court should integrate the school. Oklahoma y OK allowed for repeat offenders to be sterilized if their crimes were those of moral turpitude. VA State Board of Elections o Court overturned a VA statute that required all voters to pay a poll tax. Bell the Court upheld a Virginia statute that allowed for sterilization of inmates who were found to be afflicted with a hereditary form of insanity. y Court determined that decisions regarding procreation were fundamental to the very existence and survival of the human species. and that the decision should be left to the people of Virginia. They could cast a provisional ballot if they didn t have an ID. and no state interest is present to justify the poll tax. blue-collar) o Voting  Constitution does not require that states guarantee the right to vote in state or local elections. They were first given a hearing.  Dissent. but if they decide to grant that right. or didn t want their picture taken. o Violated EQP because it treated similar crimes differently (white-collar vs. strict scrutiny will apply o Right to Procreate (sterilization)  In Buck v. Fundamental Interests o What is a fundamental right?  Is there a deeply rooted tradition or history?  Is it implicit in the concept of ordered liberty? o If it is a fundamental right. because they could not show that the educational benefits were not capable of being produced with women admitted. y Indiana voter ID law o Indiana required that voters present a state-issued ID in order to cast a ballot. Voting qualifications are not related to wealth. An exemption was made for white-collar crimes. Three generations of imbeciles are enough. The Court upheld this by determining that the burdens on voting (trips to 27 . it must be not be granted in a discriminatory manner  Amendments: y 15th prohibits discrimination based on race y 19th prohibits discrimination based on gender y 24th prohibits the use of a poll tax y 26th prohibits a voting age of lower than 18 for federal elections  Cases: y Harper v. Nothing inherent in the admission/curriculum was incapable of being achieved by women.

 More of a balancing test than strict scrutiny Bush v. Would lead to arbitrary decisions. 28 .y the DMV or court house) were minimal when compared to the state interest in preventing voter fraud. and let individual judges in each county determine. o Once a vote is cast. Gore o Court overturned a recount procedure in Florida because it did not set a standard to determine what votes were valid. the right to have that vote counted in a manner the same as others were is fundamental and cannot be violated.