CONSTITUTIONAL LAW II OUTLINE

Chapter Five: Substantive Limits on Governmental Power

I. Historical Prelude
A. Background
. task: securing individual liberties in an age o! massive gov"t
#. Constitutional guarantees: both in amendments and in original
a. no bills of attainder $law targeting one person% or ex post facto
las $passing law a!ter the !act and then punishing !or pre&law
conduct%
'. separation o! powers is itsel! a means o! preventing abuse o! power
(. speci!ication o! rights:
a. original Constitution did not de!ine rights because !ramers did
not want to limit them: assumption was that all rights not given to
government automaticall) belonged to individuals
i. !elt that enumeration o! some rights would limit other
rights not enumerated
ii. also did not anticipate judicial review
b. state constitutions did speci!) rights* and states re+uired a B, in
order to rati!) the Constitution
-. main limitations on gov"t power: due process clauses o! -
th
. (
th

B. /atural and 0ested ,ights
. 1eclaration o! 2ndependence: general acceptance o! unwritten law o!
God and nature that gave man rights3 limits on government that are not
dependent on written law because the) belong naturall) to ever)one
a. problem: gives 4udiciar) unchecked power to determine
5natural6 rights
b. comes !rom philosophers like Loc!e
#. Calder v. Bull $789%: there are acts that the legislature cannot do
because the) are contrar) to natural la
a. Chase: there are certain acts the legislature cannot do because
the) violate the social compact or natural law* regardless o! what
the Constitution sa)s
b. 2redell: natural law is too vague a standard to rel) on3 laws can
onl) be invalidated b) the Constitution
'. doctrine of "ested ri#$ts: propert) rights are !undamental and an) law
that impairs propert) rights is void
a. problem: 5bulwark o! aristocrac)6
b. uses the contract clause to protect rights $see ' cases below%
(. Fletcher v. Peck $9:%: land grants cannot be rescinded !rom bona
!ide purchasers because to do so would 5violate general principles
common to all !ree institutions6 and would violate the contract clause.
-. Dartmouth College v. Woodward $98%: universit)"s charter is
protected !rom legislative in!ringement b) the Contract Clause.
;. Charles River Bridge v. Warren (1!"#: Because the legislature has the
power to protect health* wel!are and sa!et)* it can alter or amend
contracts that it has with individuals. <hus* the Contract Clause is /=< a
use!ul tool !or invalidating legislation that in!ringes on rights.
C. 1ue Process . Substantive ,ights
. %
t$
a&end&ent: no person shall be deprived o! li!e* libert) or propert)
w>o due process o! law
#. origins o! due process: ?agna Carta
a. American courts e@panded due process to sa) that legislatures*
in addition to e@ecutives* cannot take li!e* libert) or propert) w>o
due process
b. BA<: was this ever meant to be su$stantive* or onl) a
procedural limitationB
i. ?C was concerned mainl) with the right to a !air trial3
substantive due process e@pands libert) $e%ond merel) !air
procedures
'. state due process guarantees
a. W%nehamer v. People $9-;%: /C cannot !orbid sale and
storage o! li+uor because it violates state constitution"s due process
clause. 5Dhere rights o! propert) e@ist* the legislature cannot sa)
the) shall e@ist no longer.6
i. the emergence o! substantive due process: some rights
are be)ond the reach o! the legislature
(. -
th
amendment due process
a. &cott v. &an'ord $9-7%: Congress does /=< have the power to
prohibit slaver) in the new territories because 5powers over person
and propert) are e@pressl) denied to Congress.6 $dicta%
i. made clear that courts could not be used to deal with
slaver) because legislatures could not inter!ere with
propert) rights in slaves* thus leading to Civil Dar
-. Bill o! ,ights as a limit on state legislative power
a. Barron v. Baltimore $9''%: the B, is /=< a limit on the use
o! state governmental power. 5<he -
th
amendment restrains the
power o! the general government* not the states6 because it does
not mention whether it is directed at !ederal or state governments*
the) assume !ederal $but could be argued either wa) or both%.
i. thus* individual rights could onl) be protected b) state
legislative intrusion through state constitutions or
principles o! natural law* until the (
th
amendment
1. ,econstruction and Civil ,ights
. '(
t$
a&end&ent $9;-%: abolishing slaver) . involuntar) servitude
#. ')** Ci"il +i#$ts Act: sweeping rights to all people regardless o!
color $enacted in response to Black Codes%
a. eliminated private discrimination through public law
'. ',
t$
a&end&ent $9;9%: due process o! law e@tends to states
. overrules &cott: all persons are citiEens
#. ' important clauses
a. due process $limited in Civil Rights Cases%
b. e+ual protection $limited in Pless%%
c. privileges . immunities $limited in &laughter()ouse%
'. was hoped that would be strong enough to 4usti!) C,A* but did
not
(. '%
t$
a&end&ent $97:%: right to vote in state and national elections
regardless o! race and>or previous servitude
-. *he Civil Rights Cases $99'%: private discrimination CA//=< be
outlawed under the (
th
amendment $C,A o! 9;; is unconstitutional%
;. Pless% v. Ferguson $98;%: Separate but e+ual !acilities satis!) the FPC
II. Pri"ile#es or I&&unities- T$e Concept t$at .ailed
A. (
th
amendment: all AS citiEens are protected against state denial o! the
privileges or immunities o! AS citiEens
B. &laughter()ouse Cases $97'%: <he Privileges . 2mmunities Clause does not
prevent Louisiana !rom granting a monopol) to one butchering compan) in the
/ew =rleans area* thus depriving all other butchers o! the propert) o! their trade.
Although the (
th
amendment does appl) to all people* it applies onl) to their
citiEenship in the Anited States and not their citiEenship in their state* which is
still sub4ect to state law. <he P2 clause protects onl) those privileges .
immunities granted b) the +nited &tates* which are !ew* and does not a!!ect the
privileges and immunities that a state chooses to give or den) because it does not
rest on an) view o! natural or !undamental rights. An) privileges and immunities
that a state grants must be e@tended to people !rom other states that travel to that
state* but the !ederal government has not given a privilege to pursue a trade* so it
cannot en!orce that privilege against a state.
. idea that privileges and immunities clause onl) prevents states !rom
discriminating against citiEens o! other states still stands toda)
#. problem with the view that the P2 clause onl) protects !ederal
privileges . immunities: that makes the Constitution no di!!erent be!ore
the amendment than a!ter the amendment* so wh) pass itB
'. a!ter this case* P2 is no longer a source o! constitutional rights 'or
protecting 'undamental individual rights 'rom state action* and people
look to 1PC and FPC
(. dissents: right to trade is a propert) right that cannot be taken awa)
III. T$e Incorporation /ebate
A. +uestion: what 5libert)6 is protected b) the 1PCB
B. Palko v. Connecticut $8'7%: A de!endant can be tried twice in state courts*
even though the -
th
amendment would prevent him !rom being tried twice in
!ederal courts* because the (
th
amendment does not incorporate all o! the B,
against the states* but onl) protects values ,implicit in ordered li$ert%-* and
double 4eopard) does not o!!end the concept o! ordered libert).
. there A,F rights in the B, that the states cannot in!ringe* but this is
because the) are implicit in ordered libert)* /=< because the) are in the
B,
C. *wining v. .ew /erse%: a prosecutor"s comments about an accused not taking
the stand in state court does not violate the Constitution because the B, does not
appl) to the states
1. 0damson v. Cali'ornia $8(7%: <he prosecutor in a state trial can comment on
the !act that the de!endant did not take the stand without violating the de!endant"s
right to a !air trial. Although the 1PC o! the (
th
does guarantee the right o! !air
trial* it does not bring all o! the B, $including the right against sel!&incrimination%
under it and applicable against the states $rea!!irms *wining%.
. .ran!furter0s concurrence: <he 1PC o! the (
th
amendment has an
independent potenc%* and it does not speci!icall) incorporate the B, nor is
it con'ined to them. <he appropriate in+uir) is alwa)s whether the state
law deprived the individual o! the due process a!!orded him under the A.S.
Constitution* to be determined b) 4udicial 4udgment.
a. selective incorporation: those parts o! the B, that are based on
!undamental values o! 4ustice and !airness should be incorporated*
but not those that are merel) procedural
b. 1PC is d%namic and should be able to adapt as notions o!
libert) change3 BA< there should be the utmost 4udicial restraint
and 1PC should /=< be broadl) used
c. consensual theor% o' due process: what are the !undamental
standards o! decenc) o! Fnglish&speaking people3 what do a
ma4orit) o! states deem !undamental
#. 1lac!0s dissent: <he (
th
amendment e@tends the B, to the states in
!ull and this should be how (
th
amendment claims are evaluated. <he
4udges should not be allowed to determine their own conceptions o!
5natural law6 and 5!undamental rights6* but should stick to the B,.
a. consistent w>Black"s insistence on certaint)* but onl) i! B, can
be interpreted !or certain* which the) cannot
'. 2urp$30s dissent: 1ncorporation Plus: <he 1PC o! the (
th

selectivel% incorporates the speci!ic guarantees o! the B, but it is not
limited to those. T$is is t$e la toda3.
F. /otes on Selective 2ncorporation
. selective incorporation G gradual process o! inclusion o! those
provision o! the B, that are considered to be !undamental
a. almost all have been incorporated
b. e@ceptions: right to 4ur) in civil cases* #
nd
and '
rd
amendments*
re+uirement o! grand 4ur) indictment in criminal trials
#. Benton v. 2ar%land $8;8%: overruled Palko and e@tended protection
against double 4eopard) to appl) against the states
'. 2app v. 3hio $8;#%: protection against unlaw!ul search . seiEure*
including the e@clusionar) rule* is e@tended against the states in the same
wa) as against the !ederal government $bag . baggage%
a. overturning Wol' v. Colorado* which said that states could set
their own standards
(. general rule o! ba# 4 ba##a#e: when a right has been incorporated* it
is en!orceable against the states in the same wa) that it is en!orceable
against the !ederal government* and the same standards o! review should
be used
a. not strictl) en!orced in 4ur) trials: i.e.* can have !ewer number
o! 4urors in state than would be re+uired in !ederal
(. 5s$oc!in# t$e conscience of t$e court6: the idea that even i! a state
law does not o!!end the B,* the Court can strike it down i! it shocks the
conscience
a. not a ma4or doctrine used* but can still be argued because the
(
th
amendment is still believed to have independent potenc%
-. consensus t$eor3: the !act that a substantial ma4orit) o! states have
adopted or rescinded a polic) is 4usti!ication !or re+uiring other states to
do so as well $emerged in 2app and still applicable% $basicall) pulls states
in line%.
a. Duncan v. 4ouisiana $8;8%: the right to a 4ur) trial applies in
LA* even though its law is based on a civil code* because it is
re+uired b) the tradition o! Anglo&American ordered libert)
III. Procedural /ue Process
A. procedural due process G commonsense view that due process is a guarantee
o! procedural !airness
B. procedural !airness is onl% re+uired under 1PC when the government is
depriving a person o! 5li!e* libert) or propert)6
C. W$en is P1P dueB
. 5old$erg v. 6ell% $87:%: wel!are bene!its are a statutor) entitlement
to propert) and cannot be terminated without a hearing
#. Perr% v. &indermann $87#%: i! a college teacher can show* based on
e@isting rules and understandings o! contract* that he has an entitlement to
continued emplo)ment* then it ma) be a propert) right that the state
cannot terminate b) !iring him without a proper hearing
a. i! tenure* or in this case de 'acto tenure* e@ists* then there is an
entitlement
'. Board o' Regents v. Roth $87#%: where a college teacher CA//=<
show that he had an) entitlement to continued emplo)ment through a
%ear(to(%ear contract* he is not entitled to a hearing prior to termination
because he is not being deprived o! a propert) interest
(. Castle Rock v. 5on7ales $#::-%: a person with a restraining order does
not have a protected propert) interest in the order and has not been
deprived o! due process when police o!!icers !ail to en!orce the order. A
bene!it is not a protected entitlement i! government o!!icials ma) grant or
den) it in their discretion.
a. restraining orders are not a propert) interest because the) have
no monetar) bene!it and the need !or it arises onl) incidentall)* not
as a guaranteed government bene!it
1. W$at P1P is dueB
. Bishop v. Wood $87;%: <he government can de!ine the procedures as
well as the content o! emplo)ment3 thus the su!!icienc) o! the claim o!
entitlement must be decided b) re!erence to state procedural and
substantive law.
#. Cleveland Bd. o' 8ducation v. 4oudermill $89-%: ,e4ects Bishop and
holds that substantive rights cannot be taken without constitutionall%
ade+uate procedures. A state does not have to grant an entitlement* but
once it does* the procedures used !or termination o! the entitlement must
be determined b) 'ederal constitutional law.
a. re4ects the 5bitter with the sweet6 approach
b. makes states less likel) to grant entitlements
'. 2atthews v. 8ldridge $87;%: distinguishes 5old$erg and holds that
due process does /=< re+uire a hearing prior to termination o! social
securit) disabilit) bene!its. <he bene!its are a propert) interest* but due
process is met absent a hearing i! the administrators devise procedures that
are likel) to avoid errors on important matters as seems reasonable in the
particular administrative setting.
a. distinguished !rom 5old$erg because disabilit) bene!its are not
based on need3 i! wel!are bene!its were cut o!! improperl) then
person would not survive until reinstated* so a hearing must come
!irst3 same is not true !or disabilit)
b. !actors: nature o! private interest* risk o! erroneous deprivation*
government"s interest
c. !actors were used in )amdi v. Rums'eld: with no actual notice
and chance to rebut* too great a risk o! erroneous deprivation
C. 2nstitutional Settings: administrators have a great deal o! discretion
. +niversit% o' 2issouri v. )orowit7 $879%: a medical student can be
dismissed based on the 4udgment o! the administrator* without a hearing*
because the administrator has a great deal o! discretion to make academic
4udgments.
#. Parham v. /.R. $878%: commitment procedures !or children being
committed to state hospitals are acceptable when parents can voluntaril)
commit children with the decision o! a medical authorit) because parental
interests are ine@tricabl) linked with children"s interests.
1. /ones v. Flowers $#::;%: Although actual notice is not re+uired when a state
sells propert) a!ter ta@es on it have gone unpaid* in a case where the notice o' sale
was returned to the state9 and it thus knew that the owner had not gotten it*
procedural due process re+uires the state to take additional steps* where it is
practicable to do so* to noti!) the owner that it is selling his propert). 0lthough
due process does not re:uire actual notice9 it entails 'urther responsi$ilit% when
the government $ecomes aware that its attempt at notice has 'ailed. However* the
state will not be re+uired to take e@traordinar) steps.
Chapter ;: Forms o! Substantive 1ue Process
I. Econo&ic Substanti"e /ue Process
A. 2unn v. 1llinois $977%: the states have the power to limit the rates charged b)
grain warehouses under their police power to regulate private propert% that is
a''ected with a pu$lic interest* and the Court will not in+uire into the
reasonableness o! the rates because it is a legislative prerogative.
B. 0llge%er v. 4ouisiana $987%: Although the state can re+uire an insurance
compan) to be licensed in order to do business within the state* it cannot prohibit
a person !rom making contact with an out&o!&state insurance compan) not
licensed in the state* because that violates the individual"s right o! contract as
protected b) the 1PC.
. however9 in the )ears !ollowing &laughter()ouse* the constitutional
protection o! the libert) and propert) right to contract !or emplo)ment*
!ree o! governmental inter!erence* remained a minorit% position
C. 4ochner v. .ew ;ork $8:-%: A state cannot regulate the number o! hours a
baker can work under its police powers to regulate health and sa!et) because the
law is too tenuousl) related to health and sa!et) and inter!eres with the !reedom o!
contract o! the emplo)ee and the emplo)er to contract as to what hours the) !eel
are best. <he individuals have this right o! contract under the (
th
amendment*
and the states cannot abridge it without a much stronger showing that the law is
necessar) !or the public health. *here must $e more than the mere 'act o' the
possi$le e<istence o' some small amount o' unhealthiness to warrant legislative
inter'erence with li$ert%.
. uses a rational($asis test but !inds the law is unreasonable because it
does not reall) deal with health at all3 police powers must be e@ercised in a
wa) that is !air and reasonable $this is the correct test but was used in the
wrong manner%
#. Harlan dissent: so long as there is room !or reasonable minds to
disagree* under a rational&basis test the law is valid
'. Holmes dissent: a Constitution should not embod) a particular
economic theor)
(. problem w>ma4orit) holding: assumes e:ualit% o' $argaining power
a. did not recogniEe that corporations could limit !reedom 4ust as
governments could
-. cases appl)ing 4ochner:
a. 0dair v. +& $8:9%: A !ederal law which makes it a criminal
o!!ense !or an interstate carrier to discharge an emplo)ee due to his
membership in a labor union is unconstitutional* because the
emplo)er and the emplo)ee have an e+ual right in the libert) o!
contract.
b. Coppage v. 6ansas $8-%: Although there is an ine+ualit) o!
bargaining power between emplo)er and emplo)ee* the state still
cannot inter!ere with the constitutional guarantee o! libert) to
contract allowed to both parties to determine the conditions o!
emplo)ment.
c. 0dkins v. Children=s )ospital $8#'%: <he 1istrict o! Columbia
cannot impose a minimum wage law !or women because although
the !reedom to contract is not absolute* it is the general rule and
restraint o! !reedom o! contract is the e@ception.
d. Holmes dissents: contract is not mentioned in the te@t and can
be legislated 4ust like an) other act3 ine+ualit) o! bargaining power
means that !reedom o! contract cannot be absolute
;. cases deviating !rom 4ochner
a. 2uller v. 3regon $8:9%: A state ma@imum hour law !or
women is permissible because the ph)sical well&being o! women is
an ob4ect o! public interest because o! societ)"s interest in health)
mothers.
i. introduction o! the 5Brandeis brie!6: a mass o!
socioeconomic !acts and data in support o! the
reasonableness o! the legislation
b. Bunting v. 3regon $87%: A state ma@imum hour law !or men
is also permissible upon a 5Brandeis brie!"s6 showing that it is a
real health measure that !alls within the police power o! the state
i. a success!ul direct challenge to 4ochner
1. .e$$ia v. .ew ;ork $8'(%: Price controls !or milk are acceptable regulation
because the state can regulate private economic $usiness that has an e''ect on the
pu$lic wel'are. Fconomic legislation is no di!!erent than an) other legislation*
and states can adopt an) economic legislation the) choose and not violate the
1PC so long as the legislation has a reasonable relation to a proper legislative
purpose $here* a health) suppl) o! milk% and is neither arbitrar) nor
discriminator). 7t$e end of Lochner and econo&ic due process8 alt$ou#$
Lochner as ne"er for&all3 o"erruled9.
. propert) and contract rights are not absolute and can be regulated
#. Court cannot invalidate law because it disagrees with the economic
polic) behind it
'. cases !ollowing .e$$ia
a. West Coast )otel Co. v. Parrish $8'7%: sustained a state
minimum wage law !or women and overruled 0dkins.
b. +& v. Dar$% $8(%: A minimum wage !or ever)one is within
the legislative power o! the states.
c. 4incoln Federal 4a$or +nion v. .orthwestern 1ron > 2etal
$8(8%: Laws !orbidding discrimination against nonunion
emplo)ees are constitutional because Congress and the states can
suppress business and industrial conditions that the) regard as
o!!ensive to the public wel!are.
d. Ferguson v. &krupa $8;'%: A state law making it unlaw!ul to
engage in the business o! debt&ad4usting is constitutional even i' it
deprives someone o' their chosen emplo%ment. T$is case spelled
t$e 5last rites6 of t$e econo&ic p$ilosop$3 of Lochner- 5courts
ma) not substitute their social and economic belie!s !or the
4udgment o! elected legislatures.
F. Fvolving 0iew o! Fconomic Liberties
. +& v. Carolene Products $8'9%: Fconomic legislation is not
unconstitutional unless there is no rational $asis within the knowledge and
e@perience o! the legislator on which it could rest. <he burden is on the
challenging part% to show that the law has no rational relation to a
permissi$le governmental purpose. T$is is t$e current standard and it
$as resulted in unifor&l3 up$oldin# econo&ic le#islation a#ainst due
process c$allen#es since t$e Ne /eal.
a. this is a lower standard than what is applied to !undamental
rights
b. laws regulating ordinar) commercial transactions are presumed
valid
#. 5law and economics movement6: holds that there are economic rights
that ma) have natural law underpinnings and should be acknowledged*
because economic rights such as the right o! occupation are as important
in the lives o! people as rights o! e@pression* etc.
II. .unda&ental +i#$ts- Contraception 4 Abortion
A. most controversial: the development o! unenumerated rights against state
action
. incorporation o! procedural due process rights !rom B, is not contested
#. but* though substantive economic rights no longer recogniEed*
substantive !undamental rights are
B. 5riswold v. Connecticut $8;-%: Speci!ic guarantees in the B, have
penum$ras that give li!e and substance to the guarantees. 0arious guarantees
create Eones o! privac)* such as the '
rd
amendment"s prohibition against
+uartering o! soldiers* the
st
amendment"s right o! association* etc. Prohibiting
the use $as opposed to manu!acture and sale% o! contraceptives unconstitutionall)
invades this Eone o! privac) as it e@ists in the marital association. A ban on
contraceptives thus violates substantive due process as guaranteed b) the (
th

amendment. <he Court is not 4udging the wisdom o! the law* but is protecting
individuals !rom state action that restricts their !undamental rights.
. other !amil) privac) cases:
a. Pierce v. &ociet% o' &isters: right to send children to private
school
b. 2e%er v. .e$raska: right to have children taught German
#. amendments with penumbras violated: * '* (* -* 8
'. Goldberg concurrence: Libert) protects !undamental personal rights
and is not con!ined to the B,. <he 8
th
amendment is particularl) relevant
to this case because it shows that these !undamental personal rights e@ist
although not enumerated. Fundamental unenumerated rights should be
determined b) looking to the traditions and collective conscience o! the
people to determine deepl)&rooted principles. Brandeis: the most
important right in libert) is the right to $e let alone. 2! states can ban
contraception* the) could also mandate child&bearing* and that is an a!!ront
to libert).
a. Dhite . Harlan concurrences: the (
th
stands alone and there"s
no need to use the penumbras.
(. Black dissent: <here is no right to privac) in the Constitution* onl)
rights o! some privac) in some situations. Privac) is too vague a concept
!or the courts to appl) properl)* and the courts cannot discern the values o!
the people and will use the privac) concept arbitraril)* making the Court a
dail) constitutional convention. <he 8
th
amendment is meant to protect
state powers against 'ederal invasion. <he values o! the people are
de!ined through the elected legislatures* not the 4udiciar). $textualist
argument%
-. Stewart dissent: the law is sill)* but does not violate the Constitution
because there is no general right to privac).
a. Barron: i! the law reall) is sill)* it !ails rational basis
C. /otes on 5riswold opinions
. textualis&: even Black has !ound implied rights in other cases
a. right o! association in
st
amendment
b. e@tension o! FPC to !ederal government even though it is not a
part o! -
th
amendment due process in Bolling v. &harpe
#. :
t$
a&end&ent: has generall) been interpreted so as to be
meaningless3 i! interpreted in Goldberg"s wa) it would allow almost
an)thing
'. natural ri#$ts: doesn"t sa) so* but can be seen as a revival o! natural
rights
(. interpreti"is&: Constitution can be used as a check on legislation
onl) when that legislation violates something in the te@t or can be !airl)
implied !rom it
-. non;interpreti"is&: as long as something is a basic value in culture*
Constitution>courts can be used as a check
1. post&5riswold cases
. &tanle% v. 50 $8;8%: Person cannot be convicted o! possession o!
obscene materials in his own home because o! his right to privac)* and the

st
amendment.
a. spatial pri"ac3: stronger right o! privac) in some spheres* like
the home* than in others
b. 5riswold is based more on decisional pri"ac3
#. 8isenstadt v. Baird $87#%: State laws prohibiting distribution o!
contraceptives to unmarried persons violates the FPC and the right o!
privac) e@tends be)ond the marital couple to the individual.
'. Care% v. Population &ervices 1nt=l $877%: State laws prohibiting
distribution o! contraceptives to persons under ; and !orbidding sale to
persons over ; unless b) pharmacist and prohibiting displa) o!
contraceptives is unconstitutional because the right o! privac) e@tends to
an individual"s li$ert% to make choices regarding contraception.
F. Roe v. Wade $87'%: <he recogniEed right to privac)* whether !ounded in the
1?
th
amendment=s concept o' personal li$ert% $Court"s opinion% or in the 8
th

amendments reservation o! rights $lower court"s opinion% encompasses a woman"s
decision to terminate her pregnanc). <he privac% right* although 'undamental* is
not absolute and ma) be regulated when the state has a compelling interest
provided that the regulation is narrowl% tailored to the interest. <he state has an
interest in protecting the health o! the woman and the potentialit) o! li!e in the
!etus. 1uring the !irst trimester* neither o! these interests is compelling because
the mortalit) rate !or the woman is the same or lower than normal childbirth* and
the !etus is not )et viable3 thus* the state ma) not regulate the abortion procedure.
A!ter the !irst trimester* when the risk to the woman"s health is greater* the state
ma) regulate to the e@tent that the regulation reasona$l% relates to the woman"s
health. <he Court will not make a ruling on when li!e begins so long as
reasonable people in the medical and philosophical communities disagree. Dhen
the !etus reaches the point o! via$ilit%* the state"s interest in !etal li!e becomes
compelling and the state ma) regulate to protect that interest.
. argument that Roe should have been decided under FPC: economic
and gender discrimination
#. tri&ester sc$e&e to review abortion laws under strict scrutin3:
a.
st
trimester: no compelling interest . no regulation
b. #
nd
trimester: interest in mother"s health3 can regulate as is
narrowl) tailored to that interest
c. '
rd
trimester: interest in mother"s health and in !etal li!e3 can
regulate and even prohibit e@cept where necessar) to save mother"s
li!e
'. opinion and trimester scheme have been criticiEed as judicial
legislation: Court could have 4ust invalidated the statute as overbroad and
let the state legislatures change their own legislation
(. Dhite"s dissent: /othing in the language o! the Constitution supports
the right o! a woman to terminate a pregnanc)* and the balancing o!
interests involved should be weighed and decided b) state legislatures* not
imposed b) the Court. 0$ortion is a non(constitutional issue.
-. ,ehn+uist"s dissent: Libert) as guaranteed b) the (
th
amendment does
encompass more than what is in the B,* and there are some rights to
privac). Abortion* however* is not reall) a private act and the libert)
guaranteed b) the (
th
amendment has never been absolute. ,ather* the
state can legislate in this area where its legislation has a rational relation
to a state o$jective. <his is the appropriate test !or a matter that is best
decided b) legislatures* not courts. <he compelling interest test is not
needed because abortion is not a 'undamental right: the !act that it is
prohibited b) man) states $consensus t$eor3% shows that it is /=< so
deepl) rooted as to be deemed !undamental. 0$ortion 1& a constitutional
issue9 $ut it=s .3* a 'undamental right. *here 1& a li$ert% interest in
a$ortion $ut it is su$ject to rational($asis review.
;. 1ouglas concurrence: right o! privac) is not grounded in 8
th

amendment but in (
th
amendment"s guarantee o! libert). 1oes /=<
ground right to privac) in 5penumbras6 o! the B,* but rather in the
guarantee o! libert) $author o! 5riswold basicall) gives up its premise%.
7. Stewart concurrence: does /=< agree with the premise o! 5riswold
but now that it is established precedent and has been e@panded through
other cases* he will go along with it.
a. e@ample o! re"olutionar3 precedent as a proble& for t$e
conser"ati"e <ustice: what to do when holdings )ou disagree with
become established law that )ou are hesitant to overturn
1. Between Roe and Case%
. Doe v. Bolton $87'%: companion case to Roe that upheld GA"s
abortion statutes which stated that abortion was a crime unless necessar)
to the woman"s health and gave a ver) broad de!inition o! !actors relating
to health: emotional* ps)chological* !amilial well&being* etc. <he case also
held procedural re+uirements o! the law* such as that onl) certain hospitals
could per!orm an abortion* to be unconstitutional.
#. Roe criticisms:
a. &et$odolo#ical ob<ections:
i. the super&protected right is NOT inferable !rom an)
language in the Constitution* the thinking o! the !ramers* or
the nation"s governmental structure
ii. <udicial le#islation: the trimester !ramework is
inappropriate 4udicial invasion o! duties o! legislatures $can
think this and still believe in the basic right o! privac)%
b. fetal ri#$ts
'. We$ster: this and other cases chipped awa) at Roe without reversal3
showed that trimester !ramework no longer had ma4orit) support
a. ="Connor in dissent proposes the undue burden standard
F. Planned Parenthood o' &outheastern P0 v. Case% $88#%: $="Connor*
Ienned)* Souter%
$% <he essential $oldin# o! Roe should be rea!!irmed: $% that a woman
has a right to have an abortion be!ore viabilit) without undue in!luence !rom the
state $#% that the sate ma) restrict abortions a!ter !etal viabilit) i! e@ceptions are
made !or a woman"s li!e and health and $'% the state has legitimate interests !rom
the outset o! the pregnanc) in protecting the health o! the woman and the li!e o!
the !etus $this actuall% con'licts with Roe9 where there was no state interest $e'ore
via$ilit%%. <here is a realm o! libert) be)ond the B, and that libert) includes the
right o! a person to de!ine their own concepts about human li!e. <he state cannot
den) the woman this libert) and insist upon its own version o! what the woman
should be.
$#% Ander stare decisis* the central holding o! Roe is still relevant and
use!ul despite changes in medical technolog) $earlier viabilit)* lower health risks%
and it has $een relied upon $% women9 whose advancements in societ% have $een
in part due to their a$ilit% to control reproduction. Dhen the Court overrules a
ma4or holding* as it did in West Coast )otel $overruling 4ochner% and Brown
$overruling Pless%%* it does so not onl) because it believes the prior case was
wrongl) decided* and not onl) because political attitudes have changed* but
because there has been a !undamental change in the !actual assumptions* and this
has not occurred with Roe. <o overturn it would undermine the Court=s
legitimac% b) bowing to political pressures $weak argument3 see ,ehn+uist
rebuttal%.
$'% T$e state $as an interest in protectin# t$e life of t$e unborn
throughout pregnancy and t$e tri&ester fra&eor! is re<ected. <he state ma)
regulate abortion* and place re+uirements and restrictions on it* even in the !irst
trimester so long as it does not prohibit it or place an undue burden on t$e
o&an0s exercise of c$oice #uaranteed b3 t$e libert3 of t$e ',
t$
a&end&ent.
An undue burden is one which places a su$stantial o$stacle in the wa) o! a
woman seeking an abortion. ,e+uirements that make an abortion more di!!icult
or e@pensive to obtain are /=< substantial obstacles. <he state has a right to
make sure that the choice made is thought'ul and in'ormed3 and the woman"s right
does not include the right to be insulated !rom the views o! others. <hus the state
ma) encourage the woman to choose childbirth so long as it does not prevent her
!rom making the opposite conclusion $e'ore via$ilit%. A!ter viabilit)* it ma)
prohibit so long as there is a li!e . health e@ception.
$a% su&&ar3 of undue burden standard- 7'9 an undue burden
exists and a pro"ision is in"alid if its purpose or effect is to place a substantial
obstacle in t$e a3 of a o&an see!in# abortion of a non;"iable fetus 7=9 t$e
tri&ester fra&eor! of Roe is re<ected and t$e state can enact &easures to
pro&ote c$ildbirt$ o"er abortion e"en in t$e first tri&ester 7(9 t$e state can
continue to re#ulate for $ealt$ or safet3 as it ould for an3 &edical
procedure 7,9 a state &a3 not pro$ibit an3 o&an fro& &a!in# t$e ulti&ate
decision on abortion prior to "iabilit3 7%9 after "iabilit38 a state &a3 re#ulate
e"en b3 pro$ibitin# abortion8 it$ exceptions for life and $ealt$ of t$e
&ot$er.
$(% Ander the undue $urden standard* each provision o! the PA abortion
law* e<cept the hus$and(noti'ication provision* is constitutionall) valid.
$a% A de!inition o! a medical emergenc% as one where an abortion
is necessar) to avert the death or !or which a dela) will create serious risk o!
su$stantial and irreversi$le impairment o! a ma4or bod) !unction is acceptable.
$b% An in'ormed consent re+uirement and @?(hour waiting period*
even where the state !orces an abortion provider to give the woman materials on
how the abortion a!!ects the !etus or materials e@pressing a clear pre!erence !or
childbirth* is acceptable $materials must be truth'ul and reasona$le% as these
measures do not place a substantial obstacle in !ront o! the woman and thus create
no undue burden. Fven though the waiting period undoubtedl) makes obtaining
an abortion more di!!icult* the state is permitted to enact persuasive measures
that 'avor child$irth over a$ortion9 even i' those measures do not 'urther a health
interest. T$e ri#$t protected b3 Roe is NOT a constitutional ri#$t to abortion
on de&and> it is a ri#$t to ter&inate a pre#nanc3 free of undue interference
fro& t$e state. <he !act that it might be a bigger obstacle !or some women
$poorer% does /=< make it a substantial obstacle. $Blackmun . Stevens dissent
!rom this portion%.
$c% <he spousal noti'ication provision 2S an undue burden and is
not constitutional because it will prevent women in abusive relationships !rom
obtaining abortions. A husband does not have dominion over his wi!e. <he
interests o! a !ather and mother are di''erent be!ore the child is born. $Scalia*
<homas* Dhite* ,ehn+uist dissent !rom this portion.%
$d% <he parental consent provision is not an undue burden
provided there is an ade+uate judicial $%pass procedure. $Blackmun . Stevens
dissent.%
$e% <he recordkeeping > reporting re:uirements are not an undue
burden as the identit) o! the woman remains con!idential. $Blackmun dissents.%
. the opinion !ocuses on L2BF,<C and /=< P,20ACC
a. this de!inition o! libert) is in!luential in 4awrence* etc.
b. pri"ac3 is a funda&ental ri#$t8 and t$e3 do NOT classif3
t$is as a funda&ental ri#$t because t$e3 do NOT use strict
scrutin3 7t$e undue burden standard is LOWE+ t$an s.s.9
#. ( criteria !or stare decisis
$% has the rule proven unworkable
$#% has there been signi!icant reliance on the past decision
$'% has the rule been swallowed b) the e@ceptions
$(% have the !acts that the rules was based on changed
'. facial ". as applied c$allen#es: PP made a !acial challenge to the
waiting period re+uirement3 it ma) still be unconstitutional as applied to a
particular person
(. undue burden ". strict scrutin3: under Roe and strict scrutin)* the
provisions upheld in this case would .3* have $een valid
-. Ste"ens concur>dissent: <he state"s interest is /=< grounded in the
Constitution3 the woman"s interest 2S. <he state cannot in4ect its own
views into the woman"s decision through the in!ormed consent and
waiting period provisions. T$ese re?uire&ents are an undue burden
$he 1=FS adopt the undue burden standard%.
a. would uphold trimester scheme
b. $o useful is t$e undue burden standard@: can be easil)
manipulated to argue either side
;. 1lac!&un concur>dissent: <he trimester !ramework and strict scrutin)
are much more workable than the undue burden standard and should be
retained. ,eproductive !reedom should be given the !ull protection o! the
Constitution. All o! the PA regulations constitute an unconstitutional
burden. Roe A/1 the right o' privac% should continue to be the rule.
7. +e$n?uist concur>dissent: Roe was wrongl) decided and should be
overruled consistent with the traditional approach to stare decisis. <he
undue burden standard is an un4usti!ied compromise and a standard 5not
built to last6. Abortion is di!!erent !rom other right to privac) cases as the
interest o! the individual involves the destruction o! the !etus. 0$ortion
cannot $e a 'undamental right $ecause it has $een restricted throughout
histor%9 and $ecause it is not a 'undamental right9 it should not $e
su$jected to strict scrutin% or the undue $urden test. Popular opinion
should in no wa) a!!ect the Court"s decision to overrule or to sustain
precedent. 0 woman has a protected li$ert% interest in having an a$ortion
under the DPC9 $ut states ma% regulate the procedure in wa%s rationall%
related to a legitimate state interest. All o! the regulations are
constitutionall) valid under that standard. <heir wisdom is up to the PA
legislature.
a. libert) embraces !irml) rooted values* abortion is not one
i. problem with that view: not d)namic
ii. virtue with that view: limits 4udicial discretion
b. Pless% is the analog) to Roe: Court should overrule a wrongl)
decided case regardless o! public opinion* as it did in Brown
c. under his standard* onl) laws prohibiting abortion without li!e&
health e@ceptions could possibl) be overruled
9. Scalia concur>dissent: A state can constitutionall) choose between two
di!!erent positions on which reasonable people might agree* even i' in so
doing it intrudes on a li$ert%* so long as that libert) is not !undamental and
is not protected b) the Constitution. <he Constitution sa)s nothing about
abortion* and it could historicall) be proscribed* thus it is not a libert)
interest at all and the Court has nothing to sa) about it. <he Constitution
does not !orbid the states !rom allowing abortion but it also does not
re+uire them to do so. <hus* the states can legislate it however the) !eel is
best and the PA statute is !ine. <he undue burden standard is so easil)
manipulated as to be meaningless. <he Court can either retain or overrule
Roe3 it cannot take what it wants and disregard the rest. 2! Roe was not
correctl) decided and has not produced a settled bod) o! law* it should be
overruled.
a. compare to ,ehn+uist: Scalia does /=< think there is A/C
libert) interest...but the puEEling thing about his opinion is that he
still sa)s he would use rational&basis review
8. $at does t$is actuall3 $old-
a. t$ere is no &a<orit3 support for undue burden standard
b. reall3 it onl3 applies to t$e statutes at $and
c. possibilities for t$e future- 7'9 #o bac! to Roe 7=9 e&brace
undue burden standard 7(9 adopt a ne standard
F. &ten$erg v. Carhart $#:::%: A state statute banning 5partial&birth6 abortions is
unconstitutional because it does not provide ade+uatel) !or the woman"s health.
<here is no health e@ception* and the broad ban ma) !orce women to take riskier
procedures. Further* the statute undul% $urdens the choice b) banning a sweeping
categor) o! procedures.
a. the Partial&Birth Abortion Act was passed in #::'* but it has a woman"s
li!e e@ception
b. in this case* a majorit% o' the Court accepts the undue $urden standard
c. note: ,ehn+uist thinks Ienned)"s opinion in Case% best represents
i. 2arks: when there is no ma4orit) opinion* the opinion that best
represents the case is the one that concurred on the narrowest
grounds
G. 0%otte v. Planned Parenthood $#::;%: A state parental noti!ication statute that
does not have a health e@ception does not need to be invalidated entirel). Parental
noti!ication is de!initel) constitutional* so i! the statute itsel! can be retained and
amended to correct the de!icienc) o! the lack o! a health e@ception i! that is what
the legislature chooses to do. <he lower courts should prohibit the statute"s
unconstitutional application* but not invalidate the statute entirel).
. no mention o! standard o! review
#. basicall) passes ball back to lower courts3 upholds parental noti!ication
but also li!e and health e@ceptions as a re+uirement
'. .uture of t$e undue burden standard: currentl) has - supporters
$Bre)er* Ginsburg* Stevens Ienned)* Souter%* so even i! Alito and ,oberts
don"t adopt it $and Alito probabl) won"t%* it has ma4orit) support
III. .unda&ental +i#$ts- 2arital 4 .a&il3 +i#$ts
A. Background Cases
. 5riswold: marital privac)
#. 2e%er . Pierce: parental rights over child"s education
'. 4oving: marriage as a basic civil right
B. 2oore v. 8ast Cleveland $877%: A single&!amil) housing Eoning ordinance
violates the 1ue Process Clause when it de!ines that !amil) in such a wa) as to
criminaliEe a grandmother living with her grandchildren who are !irst cousins.
<he !amil) is not be)ond regulation* but the government interests advanced b)
such regulation must be important. Here* the interests in preventing
overcrowding and minimiEing tra!!ic and parking congestion are served
marginall) at best b) the ordinance and do not 4usti!) its intrusion into !amil) li!e.
*he constitutional right to live together as a 'amil% is part o' liberty under the
DPC and e<tends $e%ond the nuclear 'amil%.
. standard: there must be more than a rational basis* but the) don"t de!ine
the right as !undamental and don"t sa) the) are using strict scrutin).
#. grounded in substanti"e due process* not an) speci!ic amendment nor
in privac)
a. the libert) is grounded $deepl) rooted% in tradition o! !amil)*
including e@tended !amil)
'. Dhite dissent: the 5deepl) rooted6 test should not be used* the test
should be that something is so !undamental to libert) that 5neither libert)
nor 4ustice would e@ist i! it were sacri!iced6: a much harder test !or
substantive due process
C. Aillage o' Belle *erre v. Boraas $87(%: An anti&commune Eoning ordinance
that prevents a group o! unrelated $b) blood* adoption or marriage% persons !rom
living together is constitutional.
. uses rational($asis test to re4ect an 8PC challenge and does /=<
discuss substantive due process: c$oice of &a<or pre&ise that is less
controversial and is not rights&based
1. &tanle% v. 1llinois $87#%: A natural !ather who has raised his children has a
funda&ental ri#$t of parent$ood under substantive due process* and under
procedural due process* this right cannot be taken awa) !rom him without a
hearing. <hus a state law allowing children to be immediatel) adopted !ollowing
an unwed mother"s death unconstitutionall) in!ringes on the rights o! the natural
!ather.
F. *ro<el v. 5ranville $#:::%: A statute allowing courts to authoriEe visitation o!
a child to an) person when the visitation would be in the child"s best interests is
too broad and undul) inter!eres with the constitutionall) protected right o! a
parent to raise a child under substantive due process. <hus* grandparents cannot
use the statute to get court&ordered visitation with a grandchild when the mother
provides them with less visitation than the) would like.
. the state is not totall) barred !rom inter!ering with the parent&child
relationship* but it is presumed unless rebutted that a !it parent will do
what is in her child"s best interests without a court order
#. Scalia dissent: the Court cannot choose values under S1P and the
legislature has the 4ob o! correcting the statute
IA. Ho&osexualit3 and Libert3
A. Bowers v. )ardwick $89;%: A state criminal sodom) statute does not violate
the Constitution because it is not connected to !amil)* marriage or procreation or
an)thing else protected b) the right o! privac) and substantive due process.
Fundamental liberties that re+uire heightened protection are those that are $% so
implicit that neither libert) nor 4ustice would e@ist i! the) were sacri!iced $higher
standard !rom Palko% or $#% deepl) rooted in the nation"s histor). /either o! these
!ormulations o! !undamental rights protects sodom). <he Court would undermine
its own legitimac) b) recogniEing a right not grounded in the language or design
o! the Constitution.
. dissent: the case* and other S1P cases are about the funda&ental
ri#$t to be let alone* not the !undamental right o! homose@ual sodom)
$de'inition o' the right is ke%%
#. Stevens FPC argument: this statute is 'aciall% neutral* but applied onl)
to homose@uals
'. Dhite: should not allow political pressures to e@pand 1PC
a. counter;ar#u&ent: judicial restraint can $e just as much an
e<pression o' political views as is judicial activism
B. 4awrence v. *e<as $#::'%: A state statute criminaliEing same&se@ sodom)
violates the 1PC because libert) has a substantive dimension protecting the rights
o! individuals. <he case is not about a !undamental right o! homose@ualit) but a
!undamental right o! li$ert% o! the individual against state inter!erence3 o! a
consenting adult to choose his own personal relationships3 the right o' personal
autonom% as de!ined in Case%. Bowers is overruled because man) states since
then* as well as !oreign 4urisdictions* have denounced its values and overturned
sodom) laws and because a governing majorit% o' a state cannot use moralit%
alone as a $asis 'or prohi$iting a practice. 2ndividuals are entitled to respect !or
their private lives* and the state cannot demean them b) making their private
se@ual conduct a crime. <he statute !urthers no legitimate state interest that
would 4usti!) its intrusion into the personal and private li!e o! the individual.
. the statute violates both spatial and decisional pri"ac3
#. moral ma4orit) condemnation o! a practice is /=< a legitimate state
interest
'. chooses to rel) on S1P even though case could be resolved the same
wa) under FPC* because that would leave open the possibilit) o! !aciall)
neutral statutes with selective application
(. the conduct is so tied up in the relationship that the law against the
conduct essentiall% outlaws the relationshipB although the relationship
ma% not have to $e recogni7ed9 it should not $e outlawed
-. no need to adhere to stare decisis because: is inconsistent with
precedent $5riswold% and has not been widel) relied on $some states have
speci!icall) repudiated it when interpreting their own Constitutions%
;. sa)s it is /=< an endorsement o! ga) marriage* but 5oodridge cites it
7. !ocus is on li$ert%* not privac%
9. ="Connor concurrence: Bowers does /=< need to be overruled and
the case should be decided on FPC grounds. <he state treats the same
conduct di!!erentl) depending on the se@ o! the participants* and this
violates the FPC under even rational $asis review. 2oral disapproval is
not an interest su!!icient to satis!) this review. *he state cannot single out
one identi'ia$le class o' citi7ens 'or punishment that does not appl% to
ever%one else9 with moral disapproval as the onl% asserted state interest
'or the law. Preservation o! marriage or national securit) ma) be
legitimate interests* but mere moral disapproval is not.
a. discrimination against a group: under the statute* all
homose@uals are automaticall) criminals* unless se@uall) inactive
8. Scalia dissent: <he (
th
amendment allows states to deprive citiEens o!
libert) so long as due process is provided $procedural%. &u$stantive due
process* where recogniEed* states that onl% !undamental rights +uali!) !or
heightened protection. =therwise* rational&basis review ma) be used.
Homose@ual conduct is /=< a !undamental right* and the Court never
sa)s that it is. 2t is /=< deepl) rooted. ?orals legislation is acceptable
$bigam)* prostitution* etc.%* and thus moral condemnation 1& a rational
$asis 'or a law* and thus the law passes either 1PC or FPC rational&basis
review. <he Court should not 5sign on to the homose@ual agenda6 and
should allow the legislatures to make their own moral legislation regarding
homose@ualit)* because the legislatures can decriminali7e sodom% without
endorsing same(se< marriage9 $ut the Court cannot and that is what this
case will 'orce the Court to do.
a. stare decisis inconsistenc3: in Case%* widespread opposition
to Roe was reason to sustain it3 here* widespread opposition to
Bowers is reason to overrule it
:. standard of re"ie: ma4orit) never sa)s what standard its using
a. does not sa) strict scrutin) because then other statutes* like
militar) ban* would have to !all
b. uses something more than rational basis but does not sa) it
c. test !or rationalit): an% reasona$le grounds* not 4ust the
intended grounds
. use of forei#n la: Scalia hates it but then he cites it too3 ma) help
but ma) hurt more
A. T$e +i#$t to Personal Lifest3le C$oices
A. 6elle% v. /ohnson $87;%: Police grooming regulations do not violate due
process or the right to privac). <he) are a rational means !or pursuing the
government"s need !or a disciplined* uni!orm police !orce.
. dissent: no rational relationship between police o!!icers" hair length
and law en!orcement goals
B. ,ights to <reatment and Protection
. 3=Connor v. Donaldson $87-%: 2nvoluntar) con!inement o! a patient
who is not dangerous to himsel! or others violates due process. ?ental
illness alone does not 4usti!) locking up a person inde!initel) against his
will. <he Court does not* however* create a right to treatment !or an)one
who is mentall) ill* regardless o! whether or not the) are dangerous.
#. ;oung$erg v. Romeo $89#%: A person who is involuntaril) committed
to a state institution !or the mentall) retarded has substantive rights under
due process to sa!e conditions o! con!inement* !reedom !rom undue
restraint* and minimal training to ensure sa!et). <he state has considerable
discretion in determining the nature . scope o! habilitation. Libert)
interests are not e@tinguished when a person is con!ined !or mental health
purposes or !or penal purposes. <he state ordinaril) has no dut) o! care
toward citiEens* but when the state undertakes to con!ine someone* it
undertakes a minimal level o! care $ecause it has taken awa% the person=s
power to provide 'or their own care.
a. 5libert) interest6* not a !undamental right
'. De&hane% v. Winne$ago Ct%. Dept. o' &ocial &ervices $898%: <he
DPC does not re:uire a state to a''irmativel% act to protect citiEens !rom
one another* so the state did not deprive a child o! his libert) b) !ailing to
remove him !rom the custod) o! his abusive !ather. <here is no
a!!irmative right to governmental aid. Fven though the state had
previousl) had custod) o! the child* it did not have custod) o! him at the
time and thus there is no special relationship that would give the state an
a!!irmative dut) toward him. 1t is onl% when a state con'ines a person that
it has an% general dut% toward him* because then it has taken awa) his
abilit) to !end !or himsel!. <he child"s !ate would have been the same
whether or not the state had ever taken him into custod).
a. dissent: when the government attempts to give aid and then
!ails to !ollow through* it should be held responsible because it
ma) have cut o!! private sources o! aid $i.e.* the neighbors might
have helped but the) thought the government was taking care o!
it%. 2naction can be as abusive as action.
i. counter&argument: i! the state had e@tensive liabilit)
ever) time it got involved* it would probabl) 4ust provide
!ewer social services
Chapter 7: <he ?eaning o! F+ual Protection
I. 1ac!#round
A. (
th
Amendment: 5/o state...shall den) to an) person the e+ual protection o!
the laws6
. has also been read into -
th
amendment"s guarantee o! due process
#. idea is that all people should bene!it e:uall% !rom given substantive
rights
B. Histor)
. prior to 8-:s* in the absence o! race discrimination* the FPC was
given little e!!ect as a guarantee o! rights or restraint on states
a. due process was used !or substantive 4udicial review
#. Darren Court: FPC becomes prime basis !or overturning legislation
C. ' <iered S)stem o! ,eview
. rational basis: traditional de!erential standard used !or most social
and economic cases
a. burden is on challenging part)
b. most legislation passes
#. inter&ediate re"ie: classi!ication must be substantiall) related to the
achievement o! an important governmental ob4ective
a. applies to gender discrimination cases
b. burden is on the government
'. strict scrutin3: classi!ication must be necessar) to achieve a
compelling government interest
a. burden is on government
b. almost alwa)s invalidates legislation
c. used when:
i. there is a suspect classi!ication o! a protected class $race%
ii. the classi!ication signi!icantl) burdens the e@ercise o! a
!undamental right
(. in addition: the court has sometimes used the language o! traditional
rationalit) review but has been less de!erential and applied a more
e@acting scrutin)
a. e@ample: ="Connor in 4awrence $a more searching review%
b. 5rationalit) with teeth6 or 5rationalit) with bite6
II. Traditional E?ual Protection
A. Railwa% 8<press 0genc% v. .ew ;ork $8(8%: A cit) ordinance that no
vehicles carr) advertisements on them e@cept business vehicles advertising their
own business does not violate e+ual protection. <he ordinance is rationall)
related to the cit)"s goal o! providing sa!e streets where drivers and pedestrians
are not distracted. 2t is entirel) possible that the legislature determined that
vehicles who sell advertising space are likel) to be larger and create more o! a
problem* and the Court will de!er to the legislature"s 4udgment. 2t is also possible
that the legislature is taking a step&b)&step approach* which is per!ectl)
permissible. *he 8PC does not re:uire that all evils $e eradicated or none at all.
. FPC problems: o"er;inclusi"eness and under;inclusi"eness: this
statute is claimed to be under&inclusive* but the Court holds $as is still true
toda)% that legislatures can deal with problems in part or incrementall)3
otherwise the) would be powerless to deal with man) problems at all
a. under;inclusion: when a state bene!its or burdens some people
but not others who are similarl) situated
b. o"er;inclusion: includes people who are not similarl) situated
along with all who are similarl) situated
#. economic regulation is treated ver) de!erentiall) under FPC
'. Jackson concurrence: <here is no more e!!ective guarantee against
unreasonable government than to re+uire the government to impose laws
generall) and not on a minorit) onl). Di''erences o' treatment under law
should not $e $ased on classi'ications unrelated to the legislative purpose.
However* in this case the regulation should be sustained because the Court
cannot sit as a superlegislature and 4udge the wisdom o! all laws.
a. FPC is pre!erable to 1PC when dealing with legislation because
the 1PC re+uires o!!ending legislation to be struck down3 under
the FPC* it can 4ust be broadened to appl) to more groups
(. the legislation must onl% $e rationall% related to a legitimate
government interest $cannot be arbitrar) or irrational%
a. but* the purpose ma) be di!!icult to ascertain and lawmakers
ma) alwa)s be able to come up with a legitimate purpose
B. 2ore% v. Doud $8-7%: A statute regulating currenc) e@changes who sell
mone) orders that provides an e@ception !or American F@press violates the FPC
because the e@ception does not con!orm to the purpose o! protecting the public.
. this is an e@ample o! substanti"e e?ual protection: the Court sets
aside the statute because it disagrees with the reasoning $but* soon to be
overruled%
C. .ew 3rleans v. Dukes $87;%: 2ore% is overruled and a cit) ordinance
!orbidding vendors !rom selling in the French Kuarter but providing an e@ception
!or older* more established vendors does not violate the FPC. T$e <udiciar3 ill
not sit as a superle#islature unless the policy affects fundamental rights or a
suspect class8 and t$e le#islature $as a ri#$t to deal it$ a proble& #raduall3.
<he ordinance does not so lack rationalit) as to den) e+ual protection* because it
ma) make sense to deal with the problem graduall)* or the older vendors ma) not
threaten the historic charm o! the Kuarter in the wa) that new ones do.
III. Suspect Classifications- +ace
A. 4oving v. Airginia $8;7%: A statute !orbidding interracial marriages violates
the FPC despite the !act that it applies to all citiEens e+uall) $whites cannot marr)
blacks and blacks cannot marr) whites% because its purpose is to uphold the
doctrine o! white supremac)* which is not a legitimate purpose and in !act violates
the ver) purpose o! the (
th
amendment. T$e ',
t$
a&end&ent places a "er3
$i#$ burden on a state is$in# to <ustif3 a classification based on race
because t$e "er3 purpose of t$e a&end&ent as to eli&inate state;supported
racial discri&ination. +ace;based classifications &ust be s$on to be
necessar3 to t$e acco&plis$&ent of a per&issible state ob<ecti"e independent
fro& t$e racial discri&ination in order to stand.
. /= traditional rationalit) test !or statutes that discriminate b) race
#. state"s argument: at the time the (
th
amendment was passed* man)
states had anti&miscegenation statutes so the (
th
"s !ramers could not have
meant to get rid o! them3 SC sa)s that some o! the !ramers probabl)
wanted to and some did not* and the) le!t it to !uture generations
B. &trauder v. West Airginia $99:%: <he conviction o! a black de!endant is
overturned as a violation o! FPC when blacks are not allowed to sit on 4uries.
C. Palmore v. &idoti $89(%: <he state cannot consider race as a !actor in
removing a child !rom the custod) o! her natural mother. <he child cannot be
removed !rom her mother"s care simpl) because she is white and the mother is
cohabitating with a black man. Although the child ma) endure pre4udices because
o! this relationship* the Constitution cannot control such pre4udices $ut neither
can it tolerate them. <o allow race to be the decisive !actor in a child custod)
decision violates the FPC.
. adoptions: race can be a !actor considered but not the sole reason3 the
compelling interest o! the government in the $est interest o' the child ma)
re+uire them to consider race in part
#. proble& for EPC cases of t$is nature: so long as the judge does not
sa% racial $ias is the $asis o' his reasoning9 he cannot $e :uestioned even
i' it reall% is $raciall) discriminator) purpose ma) be di!!icult to prove%
1. 6orematsu v. +& $8((%: A militar) order e@cluding Japanese&Americans
!rom certain areas on the Dest Coast is permissible and a conviction !or violating
it is valid. Pressing public necessit)* especiall) during wartime* ma) sometimes
4usti!) racial restrictions even though racial antagonism does not.
. note: classi!ications based on ethnicit) and national origin are treated
the same as racial classi!ications
#. uses a strict scrutin) test to uphold: this is wh) some think racial
classi!ications should be per se invalid
F. +& v. Carolene Products Co. $8'9%: 2n an important !ootnote* states that
statutes directed at racial minorities might be sub4ect to more e<acting scrutin%
because o! their especiall) disadvantaged position as a 5discrete and insular
minorit).6
F. ;ick Wo v. )opkins $99;%: A !aciall) neutral ordinance that re+uired a permit
to operate a laundr) in a wooden building but not in a brick or stone building
violates the FPC b) discriminate application* as all Chinese who applied !or
permits $and had mostl) wooden buildings% were re4ected but all non&Chinese
were granted. ,egardless o! the intent o! the ordinance* i! it is applied in an
une+ual wa) that amounts to a practical denial o! e+ual protection* it violates the
FPC. 1iscrimination is not alwa)s overt. 0 law that is 'air on its 'ace is still
prohi$ited $% the Constitution i' in its application and administration it makes
unjust discriminations $etween similarl% situated persons in wa%s that are
material to the rights o' the individuals.
. $oldin#: even though no raciall) discriminator) purpose e@ists on the
!ace o! the statute* i! it is discriminator) in application it is invalid
IA. /iscri&inator3 Purpose 4 I&pact
A. Washington v. Davis $87;%: A law that is neutral on its !ace and serves a
valid government purpose does not violate the FPC simpl) because it has a
disparate racial impact when ( times as man) blacks as whites !ail a test re+uired
to become a police o!!icer. Although this is the rule under <itle 022* it is /=< the
rule under the FPC. *he 'act that a law has disparate racial impact9 without
more9 does not su$ject it to strict scrutin%. 2n order to invalidate a law under the
FPC* there must be a demonstrated purpose to discriminate* either on the statute"s
!ace or in its application. Here* the police department activel) recruits blacks and
there is no shown purpose to discriminate either on the !ace o! the regulation*
re+uiring <est #* or in its application. <hus* the department cannot be precluded
!rom using a valid measure to +uali!) its police candidates* which is surel) a
proper ob4ective. *he 'act that a law a''ects one race more than others does not
invalidate it i' it is neutral on its 'ace and in application and pursues legitimate
government o$jectives.
. discriminator) e!!ect is relevant* but does not standing alone invalidate
a law3 must be some purpose to discriminate shown and can"t show that
here when the) actuall) activel) recruit blacks: need &ore t$an a
disparate i&pact e"en to &a!e out a pri&a facie case
#. t$e disparate effect &ust be t$e result of state action* not o!
circumstance: segregated schools are onl) invalid when de 4ure
'. how strict scrutin) works here: must have some independent evidence
o! discriminator) purpose plus disproportionate impact to make out prima
!acie case* <HF/ state must come up with raciall) neutral reason !or
statute* 2F the) cannot then the statute is sub4ect to strict scrutin)* and it
!ails $i! the) can* no longer sub4ect to strict scrutin)%
B. 5omillion v. 4ight'oot $8;:%: ,edistricting o! a cit) that removes all black
voters is unconstitutional. 0cts generall% law'ul ma% $ecome unlaw'ul when done
to accomplish an unlaw'ul end. <he antidiscrimination principle is not limited to
!acial or e@plicit racial classi!ications.
C. Personnel 0dministrator v. Feene%: A veterans" pre!erence in state hiring that
overwhelmingl) bene!its males does not violate the FPC because there is a
nondiscriminator) e@planation !or the disparate impact.
1. /otes on re+uiring purpose
. legislative intent is e@tremel) di!!icult to prove3 would be easier to
assume people intend the probable results o! their actions
a. much o! racism is unconscious
b. moral responsibilit) !or actions ma) e@tend be)ond what one
intends
#. wh) re+uire purpose: government has no constitutional dut) to remed)
a harm it has not caused3 the remed) !or such harm is in the political
process and not the courts
a. government should not have an a!!irmative dut) to consider
race in ever) neutral action it makes3 would be burdensome
'. intent argument can go both wa)s:
a. i! it"s !aciall) nondiscriminator) then assume there"s no intent
b. i! it discriminates in !act then assume there is intent
F. Aillage o' 0rlington )eights v. 2etropolitan )ousing Development Corp.
$877%: A cit)"s Eoning decision re!using to re&Eone a single !amil) area so that a
housing corporation could build an integrated* low&income housing pro4ect does
not violate the FPC. A challenged action does not have to rest solel% on
discriminator) purposes to be invalidated* and the purpose does not have to be
obvious on the !ace o! the law. However* unless there is a star! pattern like in
5omillion and ;ick Wo* impact alone is /=< determinative3 there needs to be
some other circumstantial or direct evidence o! improper intent. =ther !actors to
be looked at include $% the historical background>se+uence o! events leading to
the decision $#% an) departures !rom normal procedures or substantive departures
$'% legislative or administrative histor). <his is a non&e@haustive list. 2n this case*
although the decision does have a disparate impact on racial minorities* there is
nothing more to show discriminator) purpose. <he Eoning decision !ollowed
normal procedures* and in !act the developers were given e@tra hearings. <he
criteria used in the decision were normal Eoning criteria that had been the norm in
the communit) !or man) )ears. <hus the developers have not carried their burden
o! showing discriminator) purpose because a discriminator% ultimate e''ect9
without more9 does not have an% constitutional signi'icance.
. to show discriminator) intent* )ou need disparate impact L independent
evidence o! discriminator) purpose3 i' %ou are a$le to show that9 the
$urden shi'ts to the legislature to show a valid non(discriminator%
purpose
a. note that )ou do /=< need to show racial animus
b. the government does /=< need a compelling 4usti!ication i! it
can show that the same decision would have resulted with or
without the impermissible purpose
#. $u#e criticis& of t$is case: basicall) gives legislatures a primer on
how to enact discriminator) legislation and have it upheld
A. /iscri&ination in Education
A. Pless% v. Ferguson $98;%: <he (
th
amendment was not intended to abolish
color distinctions because it mandates le#al e?ualit38 not social e?ualit3. Laws
separating on the basis o! color are within the power o! the state legislatures to
make as a part o! their police powers to establish public peace and good order in
keeping with the state"s traditions. Separation o! the races does not impl) the
in!eriorit) o! one race to the other* and i! some believe it does it is onl) because
that race chooses to put that construction on it. Social e+ualit) must come
voluntaril)* not through the legislature. <hus* separate but e?ual
accommodations are constitutional.
. Harlan dissent: 5=ur Constitution is colorblind* and neither knows nor
tolerates classes among citiEens.6 <he legislation proceeds on the ground
that colored citiEens are so in!erior that the) cannot be allowed to sit in
public coaches occupied b) white citiEens. Separate but e+ual !acilities
are inconsistent not onl) with e+ualit) but also with personal libert).
B. Between Pless% and Brown
. !ighting separate but e+ual: /AACP !irst !ought the 5e+ual6 part
a. b) implication* the% accepted the separate $ut e:ual doctrine3
man) legislatures tried to make !acilities 5e+ual6 in order to avoid
an) challenges to the actual doctrine itsel!* as came in Brown
#. 2issouri e<. rel. 5aines v. Canada $8'9%: ?issouri cannot onl) admit
white students to its law school while !inancing out&o!&state legal
education !or black state citiEens. <he state must give e+ual protection o!
the laws o! its own 4urisdiction* and blacks have a right to the privilege the
state has set up !or its own citiEens.
'. 2c4aurin v. 3klahoma Regents 'or )igher 8ducation $8-:%: Black
graduate students cannot be con!ined to special areas o! the classrooms*
librar) and ca!eterias because to do so denies them their 5present and
personal right6 to the e+ual protection o! the laws.
(. &weatt v. Painter $8-:%: Separate law schools within the state violate
the FPC due to ine+ualities in tangible and intangible resources.
C. Brown v. Board o' 8ducation 1 $8-(%: Separate but e+ual educational
!acilities are inherentl) une+ual* regardless o! an) allocation o! resources.
Fducation is so important* as the !oundation o! good citiEenship* that separating a
child because o! his race generates a !eeling o! in!eriorit) in him that negativel)
a!!ects this highl) important process and denies him the e+ual protection o! the
laws. Appropriate relie! will be considered in a later opinion.
. cannot solve problem b) historical in+uir) because it is unclear what
the (
th
amendment"s !ramers would have thought o! segregated schools:
some would have approved* some disapproved* and in the end the) le!t it
to !uture generations to decide
#. unusual characteristics o! the opinion:
a. !inds a violation but de!ers the remed)
i. criticism o! this approach is that it encouraged the
massive resistance to the decision
ii. Darren"s e@planation: wanted the remed) to be
s%stemic and not 4ust !or the children and districts involved
in the suit
b. ver) short !or such a big issue
i. does /=< give standard o! review* does /=< make
education a !undamental right* does /=< appl) to an)
conte@t outside o! public schools
ii. although it did not sa) it applied an)where but schools*
shortl) therea!ter the Court issued a series o! opinions
striking down a variet) o! segregated !acilities
c. unanimous
i.. this is wh) it"s so short3 the) all wanted to agree
'. heart o! the case was the social science !indings
(. Bolling v. &harpe $8-(%: 1.C. school segregation violates due process
o! the -
th
amendment* which does not include an FPC. Libert) as used in
the -
th
amendment has an FPC component even though it is not written
$still true toda)%.
1. Brown v. Board o' 8ducation 11 $8--%: All provisions o! !ederal* state or
local law permitting school segregation must )ield to the principles o! Brown 1.
2mplementation o! the principles shall rest with school authorities and courts will
have to consider whether the school authorities are acting in good 'aith. <he
district courts who originall) heard the cases are in the best position to do that* so
the cases are remanded to them. <hese courts should be guided b) e+uitable
principles and districts should eliminate obstacles to integrating the schools with
all deli$erate speed. <he burden is on the districts to show that an) additional
time is necessar) !or compliance.
. 4usti!ication o! decree: the Court knew there would be resistance* and
i! it ordered desegregation immediatel) it might be immediatel) de!ied
and undermine its own legitimac)
a. in addition* the class action e!!ect that it wanted necessitated a
more gradual approach than 4ust ordering Linda Brown admitted
#. basicall)* school districts had to submit plans !or approval to the
district courts
F. Post&Brown
. &assi"e resistance: was not reall) until C,A o! 8;( that signi!icant
changes occurred because !ederal !unding was tied to desegregating
#. Cooper v. 0aron $8-9%: <he rights o! schoolchildren are not to be
sacri!iced to the violence and disorder o! the actions o! the governor and
legislature o! A, in re!using to admit black children to Central High
School in Little ,ock.
a. violent resistance is /=< an e@cuse !or noncompliance
b. the possibilit) o! violence is not a good enough reason /=< to
en!orce constitutional rights: t$is $olds toda3 be3ond
se#re#ation cases
'. 5reen v. Count% &chool Board $8;9%: 5!reedom o! choice6 plans that
lead to de 4ure segregation are unconstitutional as a means o!
implementing Brown.
(. 0le<ander v. )olmes Ct%. Bd. o' 8d $8;8%: continued operation o!
segregated schools under 5all deliberate speed6 is no longer permissible
this long a!ter the order.
-. &wann v. Charlotte(2ecklen$erg Bd. o' 8d. $87%: limited school
desegregation plans and racial balancing to eradicating de jure
segregation* not de !acto. Brown had not made the distinction. A!ter this
case* desegregation plans can onl) be used in areas where there had been
de 4ure segregation $i.e.* the South%.
AI. Affir&ati"e Action
A. DeFunis v. 3degaard $87(%: court re!uses to decide a!!irmative action
+uestion* holding that it is moot. /issent !elt the Court should address the
a!!irmative action issue and should hold it unconstitutional.
B. Regents o' the +niversit% o' Cali'ornia v. Bakke $879%: +ace is a suspect
classification8 and las t$at classif3 b3 race &ust be narrol3 tailored to
ser"e a co&pellin# #o"ern&ent interest. An a!!irmative action program that
speci!icall) reserves a number o! slots !or minorit) students* thus allowing white
students to onl) compete !or a smaller number o! spots than minorit) students*
violates the FPC. A classi!ication that aids traditionall) victimiEed groups at the
e@pense o! innocent individuals is not constitutional. T$e attain&ent of a
di"erse student bod3 is a co&pellin# interest in t$e real& of uni"ersit3
ad&issions 7under t$e '
st
a&end&ent9* although ethnicit) cannot be the onl)
concern. A +uota s)stem is an unacceptable wa) o! achieving diversit) because it
considers ethnicit) onl). A s)stem like Harvard"s* which considers ethnicit) a
5plus6 while not insulating minorit) applicants !rom comparison with all other
applicants or guaranteeing them an) speci!ic number o! seats* is a more
acceptable narrowl) tailored program. A !acial intent to discriminate is apparent
in the +uota s)stem o! 1avis* whereas it is not in the Harvard program $compare
w>Washington: intent does not have to be !acial%. <he +uota s)stem violates the
(
th
amendment b) treating applicants as a class and not as individuals. <he
Harvard program gives each student an e+ual chance at ever) available slot* and
white students who don"t get the minorit) 5plus6 have a !ull opportunit) to show
their other contributions. <hus under the unconstitutional +uota s)stem* Bakke
was wrongl) e@cluded and should be admitted. However* 1avis is !ree to operate
an a!!irmative action program that does not operate b) +uotas.
. the FPC does not appl) di!!erentl) to blacks and whites3 all are entitled
to protection $not di!!erent !or 5discrete and insular6 minorities%
a. indi"idual ri#$ts "ie8 not #roup ri#$ts
#. Powell"s opinion is the 4udgment o! the Court* but he is the =/LC one
who agrees with all o! it
a. he compromises because he sees a!!irmative action as a
temporar% solution
'. basicall38 race can be A factor8 but not THE factor $plus !actor but
not the dispositive%
(. 4usti!ications ruled out: putting doctors in minorit) communities $no
guarantee%* remed)ing societal discrimination $must be a !actual basis* not
4ust a !eeling o! discrimination%
-. Stevens concur>dissent: ,ace cannot* under <itle 02* be the basis !or
e@cluding an)one !rom participation in a !ederall) !unded program.
Ander that standard* the 1avis program violated <itle 02* and that is all
that needs to be decided.
a. should use statutes instead o! Constitution where possible
$Powell agrees with this principle but does not agree with their
statutor) anal)sis* which is wh) he uses the Constitution%
;. Brennan concur>dissent: +acial classifications are not per se in"alid
under the (
th
amendment and the government ma) act a!!irmativel) to
achieve e+ual opportunit) !or all. Such classi!ications !or remedial
purposes are benign3 the) do not operate to stigmatiEe a group. ,acial
classi!ications 'or remedial purposes should ser"e i&portant
#o"ern&ental ob<ecti"es and &ust be substantiall3 related to t$e
ac$ie"e&ent of t$ose ob<ecti"es $intermediate standard o' review%. <he
goal o! remed)ing past discrimination 2S a valid government purpose* and
a compelling interest* even without speci!ic !actual !indings when it is
clear that minorities have been underrepresented in the program. <he use
o! race !or remedial purposes does /=< stamp a white individual with a
badge o! in!eriorit) as the class&wide discrimination against blacks did in
Brown. <he 1avis program is valid as it is* because it does consider each
individual and onl) admits minorit) and white students who are +uali!ied
to stud) medicine. Bakke should not be admitted. <he onl) di!!erence
between 1avis and Harvard is that 1avis puts its program out in t$e
open3 in realit) the) probabl) operate much the same.
a. #roup ri#$ts "ie8 not indi"idual ri#$ts $?arshall"s dissent:
where there has been group discrimination* there should be a group
remed)* but the Court will onl) allow !or individual remedies%
B. % a#ree race can be used8 but t$ere is NO 2ACO+ITD for a
standard of re"ie
a. but* no justice supported a rationalit% standard
b. indi"idual ri#$ts 4 di"ersit3 <ustification E strict scrutin3>
#roup ri#$ts 4 re&ed3 past discri&ination <ustification E
inter&ediate scrutin3
C. From Bakke to 5rutter
. )opwood v. *e<as: -
th
Circuit held that racial pre!erence program o!
the Aniversit) o! <e@as School o! Law to be unconstitutional even though
it basicall) uses a 5Harvard plan6 because Bakke has been undermined b)
subse+uent cases* and !urther it does not have to !ollow Bakke because
there was no ma4orit) opinion. ,acial pre!erences are onl) 4usti!iable
when there is identi'ia$le past discrimination to be remedied.
#. CA passed Proposition #:8* a!!irmative action in universit) admissions
'. Fullilove v. 6lut7nick $89:%: A !ederal statute re+uiring that :M o!
!ederal public works grants be given to minorit) businesses is
constitutional under N- because Congress has power to remed) past
discrimination and has superior 'act('inding a$ilit% to determine that such
discrimination has occurred. 2n addition* the statute has a sunset provision
and a waiver provision $i! no minorit) business o!!ers service* can get a
waiver%. SC does /=< decide standard o! review because the statute
would satis!) either intermediate =, strict scrutin).
(. Cit% o' Richmond v. Croson $898%: A cit) ordinance re+uiring cit)
contractors to award ':M o! contracts to minorit) subcontractors is /=<
constitutional and violates the FPC. &trict scrutin% should appl%
regardless o' the race o' the complainant. ,acial +uotas should not be
used where other means* such as a case&b)&case review* are available.
-. 2etro Broadcasting v. FCC $88:%: FCC programs granting
enhancements to applicants !or broadcast licenses who can show minorit)
participation in ownership . management and e@emption !rom distressed
sale !or broadcasters with minorit) participation is constitutional because
pre!erence to minorit) broadcasters is a pro@) !or diversit) in
programming.
a. so8 t$us far inter&ediate scrutin3 bein# used for federal
pro#ra&s and strict scrutin3 for state 4 local pro#ra&s
;. 0darand Constructors v. Pena $88-%: Federal subsidies given to
government contractors who hire minorit) businesses as subcontractors is
not unconstitutional but case is remanded to district court to appl) strict
scrutin%.
a. ' principles:
i. s!epticis&: an) program based on ethnic criteria
re+uires ver) searching standard o! review
ii. consistenc3: the validit) o! the program cannot be
based on the race o! the person burdened or bene!ited
iii. strict scrutin3: ALL !ederal* state . local programs
must be reviewed under strict scrutin) BA< the programs
can survive $strict scrutin) is /=< 5!atal in !act6%
1. 5rutter v. Bollinger $#::'%: 0ll governmental uses o' race are su$ject to
strict scrutin%9 $ut not all are invalidated $% it so long as the% are narrowl%
tailored and necessar% to 'urther a compelling interest. Diversit% in higher
education is still a compelling interest* and the Aniversit) o! ?ichigan Law
School"s program* which considers race along with a host o! other diversit)
!actors in addition to academic per!ormance is constitutional. The Court
officially endorses Powells view in Bakke. <he Court will defer to the
educational e@pertise o! the law school in determining that diversit) is a
compelling interest. 5ood 'aith on the part o! the universit) is presumed a$sent a
showing to the contrar%. <he program used b) the universit)* even though it
seeks to enroll a 5critical mass6 o! minorities* is not a +uota s)stem because the
number !luctuates !rom )ear to )ear $the critical mass is a goal9 not a :uota% and
each !ile o! ever) applicant is given a holistic review. /arrow tailoring does /=<
re+uire the e@haustion o! ever) conceivable race&neutral alternative* but does
re+uire good !aith consideration o! workable neutral alternatives. <he Law
School did here* but !ound that other programs would either decrease the diversit)
=, decrease the academic +ualit) o! all students. ,ace&based programs must be
limited in time* and the Law School has said that it will end its program as soon as
practicable. <he Court e@pects it will no longer be necessar) in #- )rs.
. &a<or fla- deferrin# to sc$ool0s <ud#&ent of co&pellin# interest
and $o to ac$ie"e t$at interest is not consistent it$ strict scrutin3
#. does not decide 2arks issue $whether precedent is binding when it does
not have ma4orit) support% because the) endorse Powell
'. under Powell"s opinion* Bakke got in but Grutter sta)s out because this
program is /=< a +uota s)stem and provides individual consideration
(. Finsbur#0s concurrence: #- )ear sunset provision cannot be !orecast
because conscious and unconscious racial bias is still present in societ)
and educational opportunities !or man) minorit) students remain
inade+uate and une+ual. 2t also cannot be !orecast because the law is not
)et in agreement on a!!irmative action* given the cases* so cannot be
predicted how long the) will be permitted to continue.
-. Scalia0s concurGdissent: <he Court should not de!er to the law
school"s 4udgment that diversit) is a compelling interest* particularl) when
it is clear that diversit) is not one o! the main goals o! the law school and
when the lessons learned !rom diversit) are 5li!e lessons* not law lessons.6
<he diverging opinions in 5rutter . 5rat7 will simpl) prolong litigation
unnecessaril) and the Court should make a uni!ied decision on a!!irmative
action that will give clarit)* not con!use the matter. *he Constitution
proscri$es discrimination on the $asis o' race9 and state(sponsored higher
education is no e<ception.
;. T$o&as concurGdissent: <he law school"s program violates the
Constitution now 4ust as it will when the sunset provision comes to pass.
*he de'erence accorded the law school is inconsistent with strict scrutin%.
Government policies based on race demean all people. <he law school
could easil) reach its goals through race&neutral policies b) lowering its
academic standards3 it should be re+uired to do this because there is
certainl) no pressing pu$lic necessit% in maintaining an elite law school9
or an% law school at all. ?arginal improvements in law education can
there!ore never be considered compelling state interests. <his is
particularl) true when the law school does not even primaril) serve
?ichigan residents or train law)ers that practice in ?ichigan. Public
universities do not have the right* even under the
st
amendment* to violate
the FPC. 2t cannot be assumed that a discriminator) polic) is 5better6
because it seeks to help a group rather than harm it* and in !act a''irmative
action harms $lacks $% putting some into institutions 'or which the% are
not prepared9 and tarnishing those who are prepared with the assumption
that the% onl% got into the program through a''irmative action.
a. compelling interests are those that protect against violence* etc.*
not those that marginall) help !urther elite education
b. the school could lower its standard !or test scores* or it could
not use the 4&0* at all9 since it knows that it produces raciall%
skewed results3 but i! it chooses to use the test then it"s stuck with
the outcomes
i. could also accept top :M o! all college students* as A<
now does !or h.s. students $)ields more minorities due to
residential segregation%
c. legacies: acceptable because not contemplated b) (
th
* whereas
race was primar) consideration
d. ea!ness: bene!it ma) be to nation or state
7. +e$n?uist dissent: <he Court"s de!erential approach is inconsistent
with strict scrutin). <he program is clearl) a racial balancing program that
is unconstitutional. <his is clear because the school admits a percentage o!
each minorit) group that is roughl) consistent with the percentage o! the
applicant pool composed o! that group* which is an outright +uota. <here
is no other e@planation !or wh) a 5critical mass6 o! one minorit) group is
larger than a 5critical mass6 o! another minorit) group. <here is also no
guarantee that the program will be limited in time* which would be
re+uired under strict scrutin).
a. !ocus on narrow tailoring* does not discuss whether or not
diversit) is a compelling interest
b. i&portant opinion: all ( dissenters sign on
9. Henned3 dissent: Powell"s rule was the correct one* but the Court
does not appl) it correctl) because it does not use real strict scrutin). <he
Court ma) de!er to the universit)"s 4udgment o! its purpose* $ut not to the
methods $% which it is pursued. <he critical mass polic)* as stated b)
,ehn+uist* is entirel) inconsistent with individualiEed consideration and is
the same thing as a +uota in practice. 2n the end o! the admissions
process* !or the remaining seats* race becomes a prime !actor divorced
!rom other !actors and is outcome(determinative. <his is wh) the number
o! admitted minorit) students* though !luctuating* never 'alls $elow the
lower end o' the critical mass range: this is the +uota. 2t is important that
the Court appl) strict scrutin) to the methods used b) schools* because
onl) then will the schools be !orced to reall) pursue race&neutral
alternatives. &trict scrutin% is the necessar) predicate to allowing race to
be considered at all* and it must be done properl).
a. deference to t$e #oal8 not t$e &et$od
b. mis+uotes Powell: Powell said race couldn"t be the sole !actor*
Ienned) sa)s he said it couldn"t be the predominant !actor
c. this dissent is most hostile o! the program* others are most
hostile o! the ma4orit) opinion
8. Sie#el: this case adopts anti(su$ordination view o! FPC: 4usti!ies
diversit) not b) its value to the educational process but b) its value in
opening up opportunities and societal goods to groups that have been
discriminated against
:. Post: this case comes close to recogniEing remed)ing past
discrimination and redistributing societal goods as compelling interests3
this would be a !orward&looking view to recogniing integration as a
compelling interest
F. 5rat7 v. Bollinger $#::'%: ?ichigan"s undergraduate admissions program*
which uses a selection inde@ and gives #: points $>- the points needed !or
admission% to each minorit) applicant* is unconstitutional. 0lthough diversit% is a
compelling interest9 the program is .3* narrowl% tailored to achieve this interest.
2t does not provide an) individuali7ed consideration !or each applicant and
instead distributes a number o! points !or race that* undisputedl)* automaticall)
ensures admittance !or all :uali'ied minorit) applicants. <he additional
5!lagging6 program does not save the overall program because it is unclear how it
operates and also because it still means that most students do not receive
individualiEed consideration. Bakke contemplated that race could be considered*
not that it alwa%s would be* and that it would be one !actor. Here* race is almost
alwa)s the decisive !actor and the #: points basicall) achieves a +uota. <he !act
that individualiEed consideration is administrativel% di''icult !or such a large
school does /=< mean that the constitutional rights o! applicants can be violated.
. standin# issue: onl) raised b) Stevens3 there is standing !or the class
even though representatives have not re&applied to ?ichigan because
intent to do so can give standing in an FPC challenge* and one
representative has intent to trans!er $BA<: trans!er polic) is di!!erentO%
a. class action: standing o! some members ma) become moot but
not others
b. the) make this big stretch $Stevens is right* there is no standing%
because the) wanted two cases* each going one wa)
#. diversit) points were given !or !actors other than race $geograph)* etc.%
but none were given #: points as race was
'. O0Connor concurrin#: <he automatic #: points determines
admissions with no individualiEed review. <he !lagging program is an
a!terthought* not a s)stem o! trul) individualiEed review. <hus* the means
used are not narrowl) tailored to the compelling interest o! diversit).
(. T$o&as concurrin#: <here should be a per se standard that racial
discrimination in higher education violates the FPC3 since there is not* the
Court correctl) applies e@isting law.
-. 1re3er concurrin#: <he Court"s 4udgment is correct3 though not its
opinion. 0 state ma% properl% distinguish $etween policies o' inclusion
and policies o' e<clusion.
;. Ste"ens dissent: <o have standin#* the petitioners" own interests must
be implicated and the) are not. <here is no standing* so the Court should
not consider the case. <here is no evidence o! petitioners" intent to
trans!er* and even i! there were* the trans!er polic) is /=< the one be!ore
the Court. <he parties have standing to seek damages !or past wrongs* but
not to obtain in4unctive relie! !or the bene!it o! !uture harms to third
parties. <he class action status does not change the standing problem*
because the plainti''s who represent a class must have standing.
<he) cannot merel) represent unidenti'ied members who ma% have been
in4ured.
7. Souter dissent: <here is no standing* but addressing the merits o! the
case* the program is closer to what 5rutter approves than to what Bakke
condemns and is not unconstitutional. <he plan lets all students compete
!or all places and is not !ocused solel) on ethnic diversit). /on&minorit)
candidates who score high in a variet) o! areas can easil) compete with
minorit) candidates. Likewise* !or minorit) students who score highl) in
man) other areas* the points !or race won"t matter. 1' a''irmative action is
going to $e used9 as the Court concedes it can $e9 $% its ver% nature it
must increase some students= chances 'or admission. <he undergraduate
school does this b) points and the law school b) holistic review* but the)
are doing the same thing !or the same goal. *he candor o' the program
should not $e what condemns itB ,e:ual protection cannot $ecome an
e<ercise in which the winners are the ones who hide the $all.-
a. Harvard"s or other 5approved6 programs ma) use points as well*
the) 4ust don"t publiciEe it
9. Finsbur#0s dissent: 1isparities* divisions and discrimination on the
basis o! race are all still present in our societ). <hus* in providing e:ual
protection* the government ma) properl% distinguish $etween policies o'
inclusion and policies o' e<clusion. 2t is not sensible to rank policies
designed to ameliorate discrimination with those intended to perpetuate it.
Here* the universit)"s polic) is not designed to discriminate against an)
race but to open up opportunities to those previousl) denied. 2n so doing*
the students it admits are all :uali'ied to attend* and so long as it has
!ewer seats than applicants it has to base its decision on something. <he
!act that the universit) is open about its polic) should not count against it3
universities will likel) continue in these policies whether the) can do so
openl) or not.
a. intermediate standard o' review
b. too earl) in histor) to appl) consistentl)
c. interest in remed)ing past discrimination is acceptable
F. /otes on 5rat7>/ewest Cases
. Post"s ( re+uirements !or diversit) plans a!ter 5rutter(5rat7:
$% not undul) harm members o! an) racial group
$#% must have been serious* good&!aith consideration o! race&
neutral alternatives
$'% limited in time
$(% trul) individualiEed consideration
#. Cases in SC right now:
a. 2eredith v. /e''erson Ct%. Bd. o' 8d.: 5managed choice6 plan
where parents>students tell district their pre!erences and then
assignments are given based on pre!erences but also race: each
school must maintain -&-:M minorit) enrollment.
b. Parents 1nvolved in Communit% &chools v. &eattle &ch. Dist.:
5open choice6 plan where parents tell district pre!erences and
pre!erences are honored but there are tie&breakers when a school is
popular* and one o! the tie&breakers is race. Fach school must sta)
within -M o! the ma4orit)&minorit) racial breakdown o! the cit).
c. school districts arguments: diversit) encourages critical
thinking and creates positive communities
d. issues: should program be treated di!!erentl) in a segregated
state than in one that was never segregated3 does diversit) matter
in I&# in the same wa) that it does in higher education3 is it too
late a!ter Brown to deal with de 4ure segregation3 should local $as
opposed to state on the universit) level% o!!icials be given
more>less>same de!erence
'. is diversit) a compelling interest an)where outside educationB
AII. Fender Classifications
A. (
th
amendment: probabl) not meant to include women given attitudes toward
women at the time $needs 5bold . d)namic interpretation6: Ginsburg%
B. Bradwell v. 1llinois $97#%: women can be e@cluded !rom law practice
because the) are naturall) un!it !or man) occupations o! civil li!e.
C. Reed v. Reed $87%: state law giving males pre!erence over !emales as
administrators o! estates violates FPC because it is an arbitrar) legislative choice
based on gender between men and women who are similarl% situated. <he !act
that the law makes estates easier to administer does not 4usti!) the discrimination
$must be using something more than rational basis to make this conclusion%.
. prior to this case* traditional e+ual protection $rational basis% anal)sis
was used* so gender discrimination was almost alwa)s upheld
#. this case sa)s it is using traditional* but is reall) using a higher standard
o! review !or gender discrimination: administrative convenience would
4usti!) a statute under rational basis* but not under a higher standard o!
review
1. F,A: would make se@ classi!ications per se inadmissible e@cept in cases o!
$% personal privac) and $#% ph)sical characteristics uni+ue to one se@3 never
passed
F. Frontiero v. Richardson $87'%: Classi!ications based on se@* like those based
on race* are inherentl) suspect and should be sub4ected to strict judicial scrutin%.
<here!ore* a law that re+uires !emale servicemembers to prove that their husbands
are dependent on them !or more than P o! their support be!ore getting the same
spousal bene!its given to male servicemembers without an) proo! that their wives
are dependent on them is unconstitutional. Administrative convenience does not
save the measure* because in !act it ma) be more inconvenient to re+uire the
showing. Financial considerations do not save the measure* because it ma)
actuall) be cheaper to re+uire all spouses to make a showing o! need* not 4ust
husbands. /either !inancial considerations nor administrative convenience could
save the measure under strict scrutin) because 5the Constitution recogniEes higher
values than speed and e!!icienc)3 and since the) don"t even e@ist it is clearl)
invalid.
. concurring: no need to characteriEe gender as a suspect classi!ication3
should decide on Reed and let F,A decide issue o! suspect classi!ication
$pluralit) opinion overrides legislative process%
#. se@ should be treated like race !or two reasons: $% both have histor) o!
discrimination $#% both are immuta$le characteristics $Brennan"s
argument3 /=< A1=P<F1%
'. t$is opinion is a pluralit3 and t$us t$e Court $as NOT adopted t$e
strict scrutin3 standard for sex classifications
F. Craig v. Boren $87;%: State laws setting di!!erent ages !or men and women to
bu) alcohol are unconstitutional under an inter&ediate standard of re"ie- is
t$e classification ai&ed at a important governmental ob!ective and is it
substantially related to ac$ie"in# t$at ob<ecti"e. <he state"s interest in
preventing drunk driving accidents is important* but di!!erent ages !or di!!erent
genders bu)ing alcohol is not substantiall) related because the di!!erence in
accident rates !or men and women is small and the overall accident rate is small*
thus the sweeping law cannot be 4usti!ied.
G. 2ichael 2. v. &uperior Court $89%: Statutor) rape laws that punish men but
not women are constitutional. State"s interest in preventing underage se@ is
served b) punishing men onl) because women* due to the !act that the) can get
pregnant* have natural incentive to avoid underage intercourse but men do not.
<hus the genders are not similarl% situated. <he case is decided under an
intermediate standard o' review* but ,ehn+uist sa)s that i! the classi!ication has a
natural basis* the law does not have to be substantiall) related to the ob4ective.
H. Rostker v. 5old$erg $89%: Laws re+uiring men but not women to register
!or the dra!t are constitutional because in the case o! the dra!t* men and women
are /=< similarl% situated. <he purpose o! the dra!t is to have combat troops*
and women cannot serve in combat.
. contrast to 2ichael 2.: it"s true that onl) women can get pregnant but
debatable as to whether the) can serve in combat
#. note- t$e inter&ediate standard applies $ere t$e #enders are
similarly situated
2. 2ississippi +niversit% 'or Women v. )ogan $89#%: A state college !or nursing
that onl) admits women violates the FPC b) e@cluding men. Because women
have historicall) been well&represented in nursing* the polic) does not remed)
past discrimination but actuall) !urthers gender stereot)pes. <he state likewise
does not in this case have a diversit) interest in allowing women to choose a
women"s college* although single(gender institutions ma% $e permissi$le in other
instances.
J. Personnel 0dministrator v. Feene% $878%: A state law that pre!erences
veterans over ever)one else in civil service appointments is /=< unconstitutional
even though it operates overwhelmingl) to the bene!it o! men over women. <he
law does not discriminate on its !ace* and though it does in its application* there is
no evidence that this is intentional discrimination and there is a nondiscriminator)
purpose* bene!iting veterans* that 4usti!ies the law. <here!ore* under the
!ramework o! Washington v. Davis and Aillage o' 0rlington )eights* the
legislation does not discriminate despite its disparate impact. <he legislature must
have enacted the law at least in part o' the discrimination* rather than in spite o' it
in order !or the law to !ail. Here* the) intended* legitimatel)* to give a pre!erence
to veterans o! an) se@ over nonveterans o! an) se@* and the unintended $ut
'oreseea$le conse:uences do not invalidate the law.
. ?arshall dissent: the !act that a legislature seeks to advantage one
group does not e@clude the possibilit) that it also intends to disadvantage
another. Dhere the !oreseeable impact o! a !aciall) neutral polic) is so
disproportionate* the burden should rest on the state to show that gender
discrimination pla)ed no part in its actions. <he histor) o! the scheme*
which used to e@empt !rom the pre!erence 54obs especiall) calling !or
women6 shows that it was enacted with gender bias in mind. 2ere
recitation o' a $enign purpose should not protect a law under judicial
scrutin%.
I. +nited &tates v. Airginia $88;%: Sex classifications &ust be <ustified b3
exceedin#l3 persuasi"e <ustification- t$e classification &ust be for an
i&portant #o"ern&ent ob<ecti"e and t$e &eans &ust be substantiall3 related
to t$e ac$ie"e&ent of t$at ob<ecti"e. <he high burden rests on the state to
4usti!) a se@ classi!ication. 0irginia has not shown met the burden* and the
operation o! 0?2 as a single&se@ institution* even with the parallel 0D2L
program* violates the FPC because it denies to women a uni+ue opportunit) that
the state has made available to men. <he state"s 4usti!ication $ob4ective% o!
providing diverse educational opportunities !ails because there is no evidence that
that is reall) wh) 0?2 was !ounded as a male&onl) school. 1iversit) is not
served b) o!!ering one kind o! education onl) to one se@. <he state"s 4usti!ication
$ob4ective% that accommodating women would destro) the adversative method
!ails as well* because as the service academies have shown* women can
success!ull) compete in militar) programs without negativel) altering the +ualit)
o! those programs. <he !act that !ewer women than men ma) choose the program
does not mean all women should be e@cluded. <he state has !ailed to meet its
e<ceedingl% persuasive justi'ication. 2t has also !ailed to remed) the situation* as
0D2L o!!ers an entirel) di!!erent program than what is o!!ered at 0?2 and the
0D2L program is in !act based on gendered stereot)pes about how most women
learn best. <he remed) should be !ashioned !or the women who brought the suit:
the women who wanted to attend 0?2. <he state has not done so* and has o!!ered
no e@ceedingl) persuasive 4usti!ication !or e@cluding women !rom 0?2.
. heightened intermediate review: burden is on state
#. 0A made a circular ar#u&ent t$at &er#ed &eans it$ ends: that
single&se@ education is an important ob4ective and must be used to meet
that ob4ective: !ails because 0?2"s actual goals do not necessitate the
e@clusion o! women
'. re&edial &easures: must put the in4ured person in the same place as
all others3 0D2L does not place women in the same place as the) would
be i! the) could attend 0?2
(. this opinion adds the gloss o' ,e<ceedingl% persuasive justi'ication- to
the intermediate standard o' review (important o$jective C su$stantiall%
related#9 thus making it a ,heightened- intermediate standard and placing
the $urden s:uarel% on the state
-. ,ehn+uist concurrence: <here is no need to add the 5e@ceedingl)
persuasive 4usti!ication6 gloss. <he problem here is that the diversit) goal
bene!ited onl) one se@ and that the remed) was inade+uate. Had 0A
actuall) created an institution comparable to 0?2 !or women* that might
have su!!iced* but the) did not.
a. difference beteen +e$n?uist and Finsbur#- $e t$in!s t$e
opportunit3 could be ade?uatel3 duplicated> s$e does not
;. Scalia dissent: *he Constitution does not deal with same(se<
education and so the Court has no $asis 'or striking it down. Same&se@
education and a same&se@ militar) are in !act deepl) rooted traditions that
ma) be changed through the legislative process* but not through the
courts. 2ntermediate scrutin) does not re+uire a least(restrictive means
anal)sis* because it is /=< strict scrutin). 2t re+uires onl) a substantial
relation* not a per!ect !it $it does not have to work in ever) case* onl)
most%. <he +uestion is onl) whether 0?2 substantiall) !urthers an
important government ob4ective. <he state has an important interest in
diversit) in higher education as the histor) o! single&se@ education shows
that this approach is important. <he state also has an important ob4ective
in preserving a s)stem o! education that is incompatible with the
admission o! women* as shown b) evidence that the Court simpl) ignores.
0D2L is irrelevant because the character o! 0?2 as&is is necessar) to the
state"s goal and should stand alone. <his decision improperl) sets the
Justices" own views into the Constitution and !orces them upon the states*
leaving the !uture o! both public and private single&se@ education in doubt.
a. Ginsburg"s standard o! review is closer to strict scrutin) $which
is what the A.S. argued !or% than intermediate
7. status o' AW14: still same&se@* though 0?2 is coed: but* ma) be able
to argue that it is a true remedial program $contrast to )ogan%
AIII. Sexual Orientation /iscri&ination
A. Romer v. 8vans $88;%: A state constitutional amendment den)ing an)
protected status to homose@uals and stating that the) cannot make discrimination
claims based on se@ual orientation* thus invalidating cit) ordinances throughout
the state that banned discrimination on the basis o! se@ual orientation* violates the
FPC and is unconstitutional. <he amendment does more than den) homose@uals
special rights3 it actuall) withdraws !rom them the right to make claims o!
discrimination when all other citiEens have the right to make those claims. ?an)
statuses not sub4ect to heightened review under the FPC* such as pregnanc) and
age* can be a basis !or discrimination* and homose@ualit) is included among
these. Homose@uals are thus* under the amendment* denied the protection o!
man) general anti&discrimination policies applicable to other citiEens. *here is
nothing special in the rights the amendment withholdsB it denies homose<uals the
right to seek redress 'or discrimination as all other groups can. Government must
remain open on impartial terms to all who seek its assistance. Amendment # !ails
the conventional rational $asis in:uir%. <he state"s rationales* respect !or
!reedom o! association and conservation o! resources* !ail because the amendment
is so broad and so clearl) aimed at disadvantaging a particular group. A bare
desire to harm a group can never be a legitimate government interest.
. enu&eration: the essential device to make clear the dut) not to
discriminate3 amendment sa)s homose@uals can"t ever be enumerated as a
group3 enumeration is /=< limited to groups given heightened protection
under the FPC
#. under the amendment* homose@uals must appeal to the entire state to
overturn the amendment be!ore the) can make a claim at all
'. uses rational basis and never addresses whether the group might be a
suspect class or i! strict scrutin3 should be used* but it does use a
$ei#$tened for& o! rational basis
a. the 5more searching review6 re!erred to b) ="Connor in
4awrence
b. argument !or suspect class status: largel) immutable
characteristic and histor) o! discrimination $but* that argument is
not accepted%
(. state"s 4usti!ications:
$% respect to other citiEens" !reedom o! association
a. Ienned) sa)s this Amendment is so sweeping that it
a!!ects man) people who would not claim that !reedom o!
association $discontinuit) between ob4ectives and means%
$#% conserving resources to !ight discrimination against other
groups
$'% this law does not pre4udice people with a particular se@ual
orientation* because the) ma) !all into other protected groups* and
the C= constitution generall) protects against discrimination* so
the) do not need heightened protection
a. Ienned) sa)s that the law sub4ects homose@uals to
another level o! securing their rights through that
constitution that other citiEens do not
-. Scalia"s dissent: Since the Constitution sa)s nothing about
homose@ual rights* the issue should be le!t to the legislatures and the) are
!ree to resolve it as the) have here* in accordance with their own moral
values. <he amendment onl) denies homose@uals the right to seek
pre!erential treatment* not the right to e+ual protection o! the laws* which
the) alread) have. 2!* under Bowers* the states are allowed to make
homose@ual conduct a crime* then surel) a state ma) be allowed to enact
other laws that merel) dis!avor homose@ual conduct. <his law does not
even do that3 it simpl) prevents those who engage in homose@ual conduct
!rom seeking special treatment. <he state is entitled to e@press moral
disapproval o! homose@ual conduct through democratic procedures to
counteract homose@uals pursuing their own agenda through democratic
procedures. <he states have done the same thing when the) outlaw
bigam)* so singling out se@ual practices !or democratic vote is neither
unknown nor unconstitutional. <he Court should not !orce the views o!
the 5elite law)er class6 on all others.
B. Post&Romer
. possible bases !or the opinion $/=< rooted in original meaning or
precedent%
a. literal reading o! FPC
b. amendment was so over and under&inclusive that it must be
understood as naked animosit)
c. legislation making it more burdensome !or one group to seek
the government"s protection is per se denial o! e+ual protection
#. Bowers . 4awrence
a. Court does not even discuss Bowers
b. 4awrence $post&Romer%: ="Connor points out that $% conduct
is so closel) correlated with group status as to amount to
discrimination $#% mere moral disapproval is /=< enough
'. Baehr v. 4ewin $Haw. 88'%: Laws restricting marriage to opposite&se@
couples violate the state constitutional prohi$ition against se"ual
discrimination* thus sub4ect to intermediate scrutin).
a. argument : prohibitions on homose@ualit) en!orce gender
norms that rest on subordination o! women
b. argument #: dual&gender re+uirement is based on inherent
se@ual complementarit) $as opposed to same&race re+uirements*
which have no basis%
c. a!ter opinion* state re!erendum limited marriage to opposite&se@
couples and allowed civil unions
d. in state sa&e;sex &arria#e cases8 t$e state courts #enerall3
ta!e federal precedent 7li!e #riswold8 Loving8 Lawrence9 and
appl3 t$e& as federal courts $a"e been unillin# to do> sa&e;
sex &arria#e battle is bein# lar#el3 fou#$t in state courts
(. 5oodridge v. Dept. o' Pu$lic )ealth $?ass. #::'%: State ban on same&
se@ marriage violates both the 1PC and the FPC o! the state constitution.
<he ban !ails rational($asis review* so there is no need to decide i! it is a
!undamental right under strict scrutin). Cites 4oving . 4awrence.
II. .unda&ental +i#$ts 4 Interests
A. when a heightened standard o! review is used $ecause o' the interests a''ected
$not because o! the group a!!ected% G substanti"e e?ual protection
. Darren Court: use strict scrutin% when laws a!!ect certain groups"
abilit) to en4o) 'undamental interests
#. since DC* no new substantive rights have been !ound* but precedents
have not been overruled
'. toda)* !undamental rights are narrowl) de!ined as those in Constitution*
developed in the law* or in tradition
B. &hapiro v. *hompson $8;8%: <he right to travel is so embedded that it does
not need to be ascribed to an) particular constitutional provision* and the purpose
o! inhibiting migration o! need) persons is impermissible. <hus* a state cannot
re!use to grant wel!are bene!its to persons who have resided in the state !or less
than a )ear because to do so in!ringes on the right to travel. <he state can
legitimatel) tr) to limit its e@penditures* but it cannot do so b) invidious
distinctions between classes o! citiEens. Because the classi'ication touches on a
'undamental right o' interstate movement9 it is su$ject to strict scrutin% and must
'urther a compelling state interest* and it does not.
. the laws !ail even though 'ederal law empowers the states to make
wel'are residenc% re:uirements
#. states make arguments to satis!) rational basis: !inances*
administrative convenience* recogniEing contributions o! citiEens3 but all
!ail because Court uses strict scrutin)
'. right to travel is accepted as !undamental right even though not
mentioned in the Constitution $ma) come !rom 1PC* P.2%
(. though not re"ersed* this case is the high&water mark !or !undamental
rights e+ual protection: substantiall) limited in &an 0ntonio 1ndep. &ch.
Dist. v. Rodrigue7* holding that education is not a !undamental right
-. Darren dissent: <he law does not prevent people !rom traveling* onl)
!rom receiving bene!its i! the) do. <he case should be anal)Eed under the
Commerce Clause because Congress has given the states the power to pass
the laws to improve interstate commerce and it passes rational basis under
that standard.
;. Harlan dissent: <he !undamental rights branch o! e+ual protection is
troubling because it allows the Court to pick out particular activities*
classi!) them as !undamental* and give them added protection without an)
basis in the Constitution. <his allows the Court to act as a
superlegislature. Dhen the right comes under the Constitution* it can be
dealt with b) the 1PC* otherwise all statutes in!ringe rights to some
degree and the Court does not have the power to pick out some as
!undamental.
a. compelling interest should onl) be used !or suspect
classi!ications or !undamental rights identi!ied under 1PC
C. Post&&hapiro cases
. 2emorial )ospital v. 2aricopa Count% $87'%: A one&)ear residenc)
re+uirement in order to receive non&emergenc) care at public e@pense in a
public hospital is invalid under &hapiro as a burden on the right to travel*
since medical care is as much a basic li!e necessit) as wel!are bene!its.
a. not all residenc) re+uirements are invalid but those that in!ringe
on basic li!e necessities are $because the) most strongl) discourage
e@ercise o! the right to travel%
#. &osna v. 1owa $87-%: A one&)ear residenc) re+uirement !or divorce is
valid because domestic law is the virtuall) e@clusive province o! the
states. Access to divorce is not denied3 merel) dela)ed* and 2owa"s
interest in protecting its decisions !rom collateral attack is su!!icient to
sustain the rule.
a. ?arshall dissents because the Court did /=< consider the right
o! interstate travel
'. 0oting ,ights Cases
a. Dunn v. Blumstein $87#%: =ne&)ear residenc) re+uirement !or
voting violates FPC because even though the prevention o! !raud is
a compelling interest* the length o! the re+uirement is unnecessar)
to achieve that interest3 a ':&da) re+uirement would be enough.
b. 2arston v. 4ewis $87'%: A -:&da) residenc) re+uirement !or
voting is constitutionall) permissible.
(. &tarns v. 2alkerson $87%: =ne&)ear residenc) re+uirement !or
receiving in&state tuition bene!its is constitutionall) permissible.
-. 2cCarth% v. Philadelphia Civil &ervice Comm=n $87;%: municipal
regulation re+uiring emplo)ees o! cit) to be residents o! cit) is
constitutional $right to travel not implicated because the regulation
involves continuing residenc)* not prior durational residenc)%.
-. Do$el v. Williams $89#%: An Alaskan statutor) scheme where the state
distributes income !rom its natural resources to adult citiEens in var)ing
amounts based on residenc) in the state violates FPC rights o! newer
citiEens. 2t does not pass rational $asis review because it creates
permanent distinctions among residents. 1t impermissi$l% creates classes
o' citi7enship. <he state"s interest in creating incentive !or people to settle
in Alaska is not served b) granting greater dividends to those who alread)
live there. <he state interest in rewarding citiEens !or past contributions is
not a legitimate purpose3 the relationship between length o! residenc) and
contribution is ver) vague. Contribution to the state is not necessaril)
based on length o! residenc). <he reasoning would open the door to a
variet) o! distinctions in bene!its* burdens and services based on length o!
residenc).
a. Brennan: concurs on right to travel basis
b. ,ehn+uist: recogniEing past contributions is a legitimate
interest that passes rational basis review and does not impede right
to travel $as &a<orit3 ri#$tl3 c$ooses not to rel3 on%
1. &aen7 v. Roe $888%: A state statute limiting the ma@imum amount o! wel!are
bene!its pa)able to a !amil) who has lived in the state !or less than one )ear to the
ma@imum amount that would have been available in the !amil)"s previous state o!
residence is unconstitutional. <he right to travel is !irml) embedded and
embraces the right granted under the Privileges or $mmunities Clause. Ander the
P2* a newl) arrived citiEen is entitled to the same privileges and immunities as
older residents o! the state. <hat right is guaranteed b) the new citiEen"s +nited
&tates citi7enship under the Constitution and is not dependent on his or her state
citiEenship. <he 1?
th
amendment likewise provides that no state ma) abridge the
privileges or immunities o! the citi7ens o' the +nited &tates. State laws that
discriminate against newl) arrived citiEens should thus be sub4ect to a higher
standard o! scrutin) than rationalit) or intermediate. <he citiEens" need !or
wel!are bene!its is not dependent on the length o! time the) have resided in the
state and the) will consume the bene!its in the state. <he law actuall)
discriminates against even this sub&class* as their pa)ments are dependent on the
pa)ments given b) their previous state o! residence. <he !iscal concern does not
4usti!) the measure: the state could reduce all pa)ments b) 7# cents and achieve
the same result without violating the Constitution. <he means are not necessar)
!or the ends. <he goal o! discouraging people !rom moving to the state is not a
permissible goal under &hapiro.
. right to travel includes:
$% right to cross state borders
$#% the right !or citiEens who visit other states to be treated the same as
citiEens o! that state $comit) clause%
7(9 t$e ri#$t to be treated li!e ot$er citiJens of t$e state $en 3ou
&o"e to a state 7pri"ile#es 4 i&&unities clause9
#. does /=< give a standard o! review* but seems to use intermediate
'. +uestion: college bene!its are porta$le* but still give in&state tuition
(. ,ehn+uist dissent: <he P2 Clause should not be revived: it has onl) been used
b) the Court once be!ore and that decision was overturned. <he right to travel is
not the same as the right to become a citiEen o! another state: once )ou settle* )ou
are no longer traveling. <he right to travel is not the same as the right to e+ual
state citiEenship. A state has a need to assure that its bene!its are onl) being given
to people who are bona !ide residents o! the state. <he Court has sanctioned the
use o! durational residenc) re+uirements to prevent !raud in other areas such as
voting and divorce* and this is no di!!erent. Although the cash bene!its ma) be
spent in CA* the bene!it o! becoming emplo)ed or emplo)able can easil) be taken
to another state. Congress e@press approval o! such laws also bolsters their
legitimac).
-. <homas dissent: <he P2 Clause is meant to ensure !undamental rights* not
ever) public bene!it that government ma) provide. 2t should not be a tool !or
inventing new rights. <he !ramers would not have included wel!are bene!its
under P2. Although the P2 ma) be resurrected $contrast w>,ehn+uist%* in that case
the FPC and 1PC should be re&e@amined also.
;. <ribe: the case is about e:ual citi7enship more than the right to travel
a. Court is more com!ortable protecting rights in terms o! 'ederalism than
in terms o! personal autonom) or !undamental rights* that"s wh) it does
not use &hapiro
b. under t$is rulin#8 /O2As are unconstitutional because t$e3
se"erel3 burden t$e ri#$t to establis$ ne state citiJens$ip $would lose
man) more rights than 4ust wel!are bene!its%
Chapter 9: Freedom o! F@pression
I. .ree Speec$ /octrine
A.
st
amendment: !reedom o! speech and press cannot be abridged b) 'ederal
government
. e@tended to states through (
th
amendment $5itlow v. .;* 8#-%
#. /=< all categories o! speech are protected: !raud* de!amation*
obscenit)
a. can place speech in protected>unprotected categories b) their
nature>content
b. di!!erent approach: ask what government interest is in
suppressing the speech* rather than the nature o! the speech
B. Clear 4 Present /an#er /octrine
. conte@t: national securit)
#. ( explanations for freedo& of speec$
a. &ar!etplace &odel
i. Holmes: test o! truth is success in marketplace
$application o! social 1arwinism to ideas%
ii. government should sta) out: market is sel!&e@ecuting
and sel!&correcting
iii. criticism: market is not open to ever)one on an e+ual
basis* especiall) toda) $Barron: protecting the right o!
e@pression is not e+uivalent to providing !or it%
iv. criticism: theor)"s goal is attainment o! truth* but posits
that we must continuall) keep looking !or the truth
v. criticism: would protect !raud until marketplace weeded
it out3 discredits the power o! emotional appeals
b. citiJen participant &odel
i. ?iekle4ohn: political speech must be absolutel)
protected because the !ramers wanted citiEens to have the
in!ormation necessar) to participate in the li!e o! the
republic
ii. distinguishes between public and pri"ate speec$:
public speech must be absolutel) protected* but private
speech that doesn=t relate to pu$lic discourse need not be
$must look to 1PC !or protection o! private speech and it
can be regulated on a rational basis%
iii. grounds the
st
amendment in the principle o' sel'(
government and consent to authorit%
iv. leads to a !i@ed set o! protected e@pression3 does not
protect individual right to e@pression
v. criticism: man) acts that are not pure speech ma) aid in
!inding political truth: work and li!e e@periences3 also* who
determines what is public and what is private* what is
political and what is non&political
c. indi"idual libert3 &odel
i.
st
amendment protects sel!&realiEation and personal
autonom)3 it"s not 4ust about the right to write a pamphlet
but the right to present one"s ideas to the world3 thus it must
almost alwa)s be protected $most encompassing model%
ii. criticism $Bork%: i! )ou protect ever)thing* then )ou
protect nothing* and !reedom o! speech is meaningless3
!reedom o! speech should not e@tend to groups who* i! the)
got into power* would den) political speech to others* like
/aEis $problem is this test would be ver) sub4ective%
iii. values speech as an ends and a means b) !urthering
sel!&determination as opposed to speech being onl) a public
good
iv. criticism: other activit) that aids in sel!&determination
is regulated* so wh) not speech
'. histor): !ree speech reall) began to be considered b) the SC a'ter WW1
a. communist groups de!)ing Fspionage Act
b. prior to DD2* most speech issues resolved in state court
(. &chenck v. +& $88%: A Socialist does not have the right to mail
lea!lets to )oung men comparing the dra!t to slaver) because the
character o' the act depends on the circumstances in which it was done. 2!
the words* b) their nature and in the circumstances involved* create a
clear and present dan#er of brin#in# about substanti"e e"ils t$at
Con#ress $as a ri#$t to pre"ent* then Congress ma) prevent them b)
suppressing the speech. Some speech that ma) be acceptable in times o!
peace is not acceptable in times o! war. 2n this case* speech that
encourages obstruction o! the dra!t is not acceptable under the Fspionage
Act. $Holmes%
-. 0$rams v. +& $88%: Abrams was convicted* and the SC upheld the
conviction* !or publishing and distributing pamphlets criticiEing American
activities in ,ussia. )olmes9 now in dissent9 set 'or the marketplace of
ideas theory of freedom of e"pression- <he AS ma) punish speech that
ma) bring about a clear and present danger* and the power is greater in the
time o! war. However* the principle o! !ree speech is alwa)s the same* and
there must be a true clear and present danger in order !or Congress to
suppress it. <hese pamphlets did not present an) threat or intent to cause
danger3 the) merel) criticiEe. *he ultimate good desired is $etter reached
$% 'ree trade in ideasEthat the $est test o' truth is the power o' thought to
get itsel' accepted in the competition o' the market. Dhen all ideas are
available to compete* the truth will be obtained b) comparing them to one
another. <his cannot happen i! the government keeps ideas o!! the market.
=nl) an emergenc) allows Congress to inter!ere with the marketplace.
a. there must be an immediate evil such that there is no alternative
to +uashing the speech
b. idea is that the marketplace will ordinaril) weed out untruth!ul
or inappropriate speech* but in an emergenc% there is not time to
wait 'or the marketplace to work* so onl) then can gov"t step in
;. criticis&s of clear 4 present dan#er test
a. oversimpli!ied 4udgment unless it takes into account and weighs
a variet) o! !actors
b. permitting e@pression onl) until the point where it becomes
e!!ective permits onl) abstract or innocuous e@pression
c. balancing tests wind up representing the ideological
predispositions o! those who do the balancing
7. alternative: t$e 2asses test !rom Learned Hand: A person cannot tell
others to break the law* so speech should be permitted unless it is a direct
incitement to break the law. 2! one stops short o! urging to resist the law*
one has not attempted to cause its violation and the speech is protected.
a. criticiEing dra!t is oka)* telling people to evade it is not
9. alternative: speec$;action dic$oto&3Gabsolutist "ie !rom Black: no
law means no law* so speech ma) not be prohibited in an) instance.
0ction ma) be prohibited* so the ke) is determining whether speech or
action is being regulated.
a. di!!icult to do: is )elling 5FireO6 in a crowded theater speech or
actionB
b. absolutist construction is impossible in practice* there must be
some kind o! balancing process once it is recogniEed that !ree
speech must give wa) to competing social interests in at least some
situations
c. an absolutist construction is not re+uired b) the language or the
!ramers" intent $obscenit) . !raud laws e@isted when the
amendment was adopted%
8. alternative: content;based ". content;neutral: i! regulation is
speci!icall) aimed at the content $content&based%* then strict scrutin%
should be used3 i! regulation is based on other !actors $content&neutral%
than a lower standard o! review ma) be used
:. alternative: cate#orical approac$: does it !all into a protected or
unprotected categor)
C. Whitne% v. Cali'ornia $8#7%: A woman"s conviction under CA Criminal
S)ndicalism statute* which prohibited teaching or advocating terrorism as a means
o! political change* !or attending a Communist part) meeting and being elected a
member o! its committee. 1randeis fa&ous concurrence: <he statute restricts
the !ree rights o! speech and assembl). <here must be a clear and imminent
danger in order !or these rights to be restricted. <he !ounders valued libert) as
$oth an ends and a means $indi"idual libert3 "ie% and !elt that public
discussion was a political dut) $citiJen participant% and that order cannot be
secured through !ear. Fear o! serious in4ur) alone does /=< 4usti!) suppression
o! !ree speech and assembl). <here must be reasonable ground to !ear that
serious evil will result i! the speech is allowed. 8ven advocac% o' violence9
however reprehensi$le morall%9 is not a justi'ication 'or den%ing 'ree speech
where the advocac% 'alls short o' incitement. <he danger must be so imminent
that it will happen be!ore there is time to discuss the issue. =therwise* the remed)
is more speech $&ar!etplace t$eor3%. <he !act that some violence or destruction
o! propert) ma) occur is /=< enough to suppress3 there must be probabilit) o!
serious in4ur) to the state. 2n this case in particular* there was not even intent to
do violence* onl) mere association that did not pose a threat.
. her de!ense o! peace!ulness on her part is an issue o' 'act that should
not $e re(opened $% an appellate court. <his is wh) Brandeis concurs in
the 4udgment $because he !eels he cannot include the issue o! !act in his
discussion o! law%* but disagrees with the legal principles
a. toda)* the doctrine o' constitutional 'act would prevent him
!rom making this argument: where the !acts are so bound up with
the legal argument that the) are inseparable* the appellate courts
are !ree to ad4udicate the matter contrar) to the lower courts
#. t$e courts and NOT t$e le#islature s$ould decide $en a clear and
present dan#er exists: onl) the courts will have the particular set o! !acts
be!ore them* and the legislature should not be able to declare clear and
present danger whenever the) !eel there is a crisis
a. the people should have an opportunit) to challenge whether or
not there is a clear . present danger
b. the ma4orit)"s balancing test is e+uivalent to no judicial review
at all: the enactment o! the statute alone does not establish its
validit) under the circumstances o! the case
c. = ar#u&ents: $% the purpose o! constitutionalism is to
occasionall) set aside legislation desired b) the ma4orit) that
harms the minorit) $#% in a democratic societ)* 4udicial invalidation
o! legislation enacted through the democratic process is not a
neutral nor a democratic decision
'. safet3;"al"e t$eor3: so long as people have a power to vigorousl)
criticiEe government* the social entities o! societ) are secure
(. constitutional rights should be en!orced even at the risk o! disorder:
Cooper v. 0aron
-. Dennis v. +& $8-:s&?cCarth) era%: Convictions !or Communist part)
activities under the Smith Act are a!!irmed b) the SC* which sa)s it is
using the clear . present danger test but reall) uses a revised 5clear
danger6 test where the gravit) o! the danger outweighs its probabilit).
;. ;ates v. +&: Advocac) must be o! illegal action* not merel) o! a$stract
doctrine. ?oves the law in a more speech&!riendl) direction
1. 2odern /octrine
. Branden$urg v. 3hio $8;8%: Whitne% is overruled and =hio"s
Criminal S)ndicalism statute is invalid because it punishes mere advocac)
o! violence as opposed to incitement to imminent lawless action. T$e
constitutional #uarantees of free speec$ and free press do not per&it a
state to proscribe ad"ocac3 of t$e use of force or ad"ocac3 of la
violation unless the advocacy is %&' directed to inciting imminent action
and%(' is likely to produce such action 7t$at0s t$e Brandenburg test9.
<hus* a Ilan leader cannot be punished under the statute !or advocating
revenge against the government and those who 5repress6 the white race*
when there was not immediate threat o! such violence actuall) occurring
because to do so would violate his rights o! !ree speech and assembl).
a. advocac) o! a$stract doctrine is protected
b. criminal s)ndicalism statutes are thus 'aciall% unconstitutional
because the) do not distinguish between imminent incitement and
abstract doctrine
c. Black concurrence: clear . present danger doctrine has no
place in
st
amendment law
d. 1ouglas concurrence: clear . present danger doctrine is never
acceptable in peacetime* and probabl) not even in wartime. Ase o!
the test amounts to 4udicial 4udgment o! what a clear . present
danger is and the) are usuall) incorrect. Action is a method o!
e@pression within the protection o! the
st
amendment. <he
instances where speech* even when brigaded with action* ma) be
abridged are ver) rare.
e. note that it does /=< mention clear . present danger doctrine
b) name
#. post&Branden$urg cases
a. Rice v. Paladin 8nterprises $889%: ?arketing a book entitled
5Hit ?an6 that e@plains how to murder others is /=< protected b)
the Branden$urg doctrine because the
st
amendment does not
protect aiding and abetting violations o! law. <he manual teaches
concrete action instead o! advocating abstract doctrine and crosses
the line !rom theoretical advocac) to direct and pro$a$le
incitement.
b. )ess v. 1ndiana $87'%: An anti&war demonstrator who sa)s he
will 5take to the streets6 cannot be convicted under Branden$urg
because his words were advocac) o! illegal action at an inde!inite
!uture time and were not directed at an)one and there was no
rational inference t$at t$e3 ere intended to or ere li!el3 to
produce disorder.
c. .00CP v. Clai$orne )ardware Co. $89#%: Statements b) an
organiEer to citiEens that the) would have their 5necks broken6 i!
the) broke the bo)cott were protected under Branden$urg because
directl) coercive threats or blackmail are /=< removed !rom the
protection o! the
st
amendment.
II. T$e Structure of Speec$ +e#ulation
A. Content&Based and Content&/eutral ,egulation
. distinguishes between when the government undertakes to regulate
speech because o! message and when it regulates !or some other purpose
a. when government regulation is content($ased* it must show that
the speech 'alls into a categor% o' unprotected or low value speech3
otherwise the regulation is presumptivel% unconstitutional
i. re#ulatin# content b3 viewpoint is t$e &ost suspect
b. when government regulation is content(neutral*
st
amendment
review is less demanding
i. time>manner>place regulations can be reviewed under
intermediate balancing
ii. de!erential approach* but heightened scrutin) ma) be
used when the incidental restriction either has a highl)
disproportionate impact or directl) penaliEes e@pression
iii. see 3=Brien
#. note: when the speech !alls into an unprotected categor%* such as
obscenit) or true threats* it CA/ be regulated b) either content&based or
content&neutral regulation3 it is onl% when the speech does .3* 'all
clearl% into an unprotected categor% that the :uestion is asked whether the
regulation is content($ased or content neutral
a. test for content;based: must be a compelling government
interest and regulation must be narrowl) tailored to serve that
interest $strict scrutin%%
b. test for content;neutral: must be a su$stantial governmental
interest and must be narrowl) tailored to that interest A/1 it must
leave open alternative avenues o' communication $sounds like
intermediate review* but is in practice much more de!erential%
'. *urner Broadcasting &%stem v. FCC $88(%: Laws re+uiring cable
television s)stems to carr) a certain number o! local broadcast stations do
/=< violate
st
amendment rights because the) are content(neutral
regulations* intended to preserve !ree access to television !or the
substantial percentage o! Americans who don"t have cable* and not
intended to regulate content. <he regulation should be reviewed under an
intermediate level o' scrutin% applica$le to content(neutral restrictions
that impose an incidental burden on speech.
a. principal +uestion to ask when determining i! a regulation is
content&based or content&neutral: has the government adopted the
regulation because it disagrees with the message conve)ed b) the
speech
b. but* the mere assertion o! content&neutral purpose will /=<
save a regulation which discriminates on content
c. content&neutral regulations pose a less su$stantial risk o!
e@cluding ideas !rom the public dialogue
(. Police Dept. o' Cit% o' Chicago v. 2osle% $87#%: A cit) ordinance
prohibiting all picketing around schools e<cept peace!ul picketing related
to a labor dispute 2S unconstitutional because it is a content($ased
regulation. <he government ma) not* under e:ual protection A/1 the
st

amendment* grant the use o! a !orum to those whose views it !inds
acceptable and den) it to those it disagrees with. =nce the !orum is
opened up* it cannot be prohibited to some onl) on the basis o! what the)
want to sa).
a. but note that government can den) protection !or unprotected
categories and o!ten through content&neutral regulation
-. &imon > &chuster v. .; &tate Crime Aictims Board $88%: State law
re+uiring publishers who contract with accused or convicted persons to
depict the crime to turn over mone) earned to the victim 2S
unconstitutional because it singles out income derived !rom e@pressive
activit) !or a burden placed on no other income !rom e@pressive activit).
2! the government can place !inancial burdens on speech* it can drive
certain kinds o! speech out o! the &ar!etplace. Although the state does
have an interest in compensating crime victims* this law is not narrowl%
tailored to that end because it is over&inclusive $it would include ?alcolm
Q"s autobiograph)* <horeau"s civil disobedience* etc.%.
a. Ienned) concurrence: a per se rule against content&based
regulation with e@ceptions !or unprotected categories would be
easier than the ad&hoc balancing the Court is doing
III. T$e /octrine of Prior +estraint
A. prior restraints call !or closer judicial attention and there is a heav%
presumption against the validit% o' a prior restraint
. narrow argument that
st
amendment is onl% limited to prior restraints
has been re4ected
a. this was the original understanding o! Anglo&American law* but
is not the case toda)
#. wh) no prior restraints: speech restrained prior to publication never
even reaches the marketplace* so it is much more restrictive o! e@pression
than punishing the speech a!ter it is made
'. note that prior restraints are not a$solutel% prohibited
B. .ear v. 2innesota $8'%: <he state cannot en4oin a newspaper that has
previousl) published scandalous articles about public o!!icials !rom publishing
an) new papers because this is 5the essence o! censorship.6 <he prohibition on
prior restraints is not absolute* but will onl) be abandoned in e@treme cases. 2n
the normal case* public o!!icers who !ind themselves the sub4ect o! !alse
accusations b) newspapers must !ind their recourse in libel laws* not b)
repressing !uture publication o! the paper. <he o!!icial cannot redress the issue
be!ore the matter is even published. A !ree press is necessar) to the public
discourse and cannot be restrained even though the libert) o! the press ma) be
abused b) some. A statute aut$oriJin# proceedin#s to en<oin a paper is an
infrin#e&ent of t$e libert3 of t$e press. Ander the statute* a publisher might be
re+uired to get court approval o! the truth o! its content be!ore publishing* and this
would be a step towards total censorship.
. the !act that !or -: )ears there have been virtuall) no such laws speaks
to their invalidit)
#. basic idea- 3ou can punis$ after t$e fact8 but can0t pre"ent t$e
publis$in# in t$e '
st
instance $restrictions valid a!ter the !act are not valid
be!ore the !act%
'. a heav% presumption against the validit) o! prior restraints ma) be a
higher standard than strict scrutin)
(. almost alwa)s invalid
a. e@amples o! where prior restraints would /=< be invalid:
national securit) secrets* obscenit)* incitements to violence $never
an) e@planation as to wh) the) are not invalid%
-. dissent: <he statute and in4unction are not prior restraints* the) are
continuing e!!orts to deal with something alread% ad4udged to be a
nuisance. <he) prevent 'urther publication* not publication in the !irst
instance. ,egular libel laws are inade+uate to deal with the t)pe o! evils
presented in this case. Repeat pu$lications are not sub4ect to the prior
restraint rule.
a. at Fnglish common law* onl) administrative actions were
sub4ect to the doctrine3 this e@tends them to 4udicial as well
i. to an e@tent* Court recogniEes that administrative
restraints are more harm!ul* but applies the doctrine to
4udicial restraints as well
;. SC has used doctrine ver% li$erall%* appl)ing to cases that do not reall)
involve true prior restraints
a. 5rosjean v. 0merican Press: struck down ta@ on widel)&
circulated newspapers that had been critical o! the government3
this is reall) a punishment a!ter the !act but was treated as a prior
restraint
b. de!ines the 5special vice6 o! prior restraints to be that the)
suppress communication directl) or $% inducing e<cessive caution
in the speaker be!ore an ade+uate 4udicial determination has been
made about whether or not the communication is unprotected b)
the
st
amendment
C. .; *imes v. +nited &tates $87% $Pentagon Papers case%: <he !ederal
government CA//=< en4oin newspapers !rom publishing the Pentagon Papers*
secret documents regarding the 0ietnam Dar leaked to the papers b) a Pentagon
o!!icial.
1. .e$raska Press 0ssociation v. &tuart $87;%: State cannot issue a gag order
preventing papers !rom publishing in!ormation about a trial because there are
other measures that can be used to ensure a !air trial* such as change o! venue.
. toda)* states gag law)ers !rom talking to press instead
IA. T$e '
st
A&end&ent O"erbreadt$ /octrine
A. overbreadth doctrine G government ma) /=< achieve a concededl) valid
purpose b) sweeping unnecessaril) broadl) into protected as well as unprotected
activit)
. unusual result: a person who could be convicted under a narrowl)&
drawn statute can $e ac:uitted when the statute is overl) broad
a. e@ample: a statute prohibiting all se@uall) e@plicit movies
could be challenged b) a pornographer on the grounds that it
would invalidate Romeo > /uliet
#. &ost distincti"e conse?uence- standin#
a. *hornhill v. 0la$ama $8(:%: an individual whose conduct
might be prohibited b) a properl) narrowl)&drawn statute can
ob4ect to the statute on the basis o! overbreadth $thus invoking the
rights o! others* not himsel!%
b. but* overbreadth used this wa) is 5strong medicine6 and not
done o!ten
c. necessar) because overbroad laws will chill speech
'. contrast w>"a#ueness
a. a statute can be overbroad b) encompassing too much )et be
ver) clear about what it is prohibiting $gives a clear warning* but
warns too man) people%
b. both vices lead to danger o! selective en!orcement* but !or
di!!erent reasons: vague laws because no one knows how !ar it
reaches* overbroad law because it knowingl) reaches too !ar
B. Broadrick v. 3klahoma $87'%: A statute that restricts the political activities o!
state civil servants is /=< overbroad =, vague. <he appellants" conduct !alls
s+uarel) within the statute and the principle that a person to whom a statute
constitutionall) applies cannot challenge it on the basis that it could be
unconstitutionall) applied to others $traditional standing% applies. =verbreadth
should be used sparingl) and onl) as a last resort. 2t is an e@ception to the
traditional rule* and especiall) when the statute regulates conduct and not merel%
speech* overbreadth must be not onl% real9 $ut su$stantial as well $cannot be
merel) h)pothetical%. <here comes a point where the unconstitutional e!!ect is
such a h%pothetical prediction that it does not 4usti!) invalidating the statute as
constitutionall) applied to the conduct at hand.
. in this case* appellants were involved in active campaign contributions
and solicitations* etc.3 the) argued that the statute could appl) to those
who 4ust wear a button or put a bumper sticker on their cars
#. dissent: <he Court does not de!ine 5substantial overbreadth6 nor
e@plain wh) this overbreadth* while real* is not substantial. 2t also does
not e@plain wh) conduct should be treated di!!erentl) than speech even
when both are protected e+uall) b) the
st
amendment.
C. 4ewis v. Cit% o' .ew 3rleans $87(%: SC struck down an ordinance that made
it a crime to use inappropriate language toward police o!!icers as overbroad*
indicating that Broadrick ma) not to a!!ect 5pure speech6 cases.
1. 4os 0ngeles Cit% Council v. Aincent $89(%: A municipal ordinance
prohibiting the posting o! signs on public propert) is /=< overbroad because
there must be a realistic chance that the statute will actuall) and signi!icantl)
compromise
st
amendment protections o! parties /=< be!ore the Court be!ore
the Court will strike it down on overbreadth $so ma)be does appl) to pure
speech%.
F. Board o' 0irport Commissioners v. /ews 'or /esus $897%: An airport
regulation that prohibits all
st
amendment activities in the main terminal 2S
overbroad and unconstitutional. <he airport cannot create a 5
st
&amendment&!ree&
Eone6 because no conceivable government interest would 4usti!) such an absolute
prohibition on speech.
A. .i#$tin# Words8 Offensi"e Speec$ 4 Hate Speec$
A. Chaplinsk% v. .ew )ampshire $8(#%: A Jehovah"s witness who tells the cit)
marshal that he is a 5racketeer6 and a 5Fascist6 and that the whole government is
made o! Fascists can be convicted under a statute !orbidding o!!ensive words
directed at other people in public with the gloss $5curative gloss6 or 5saving
construction6% given to the statute $% the state supreme court and the &C:
fi#$tin# ords8 t$ose $ic$ $a"e a direct tendenc3 to cause acts of "iolence
b3 persons to $o& t$e3 are addressed8 are not protected b3 t$e '
st

a&end&ent because t$eir "alue is clearl3 outei#$ed b3 t$e social interest in
pre"entin# i&&ediate breac$es of t$e peace.
. !ighting words are unprotected or low&level speech because their slight
value is outweighed b) the strong importance o! preventing immediate
breaches o! the peace
#. words must tend to directl) incite the person to whom the) are
addressed
'. /=< ver) man) success!ul !ighting words actions toda) because $a%
it"s basicall) subsumed b) Branden$urg test and $b% most statutes against
!ighting words are either overbroad or vague or both
(. $ar&s;effect rationale: 2n the AS* whether speech is harm!ul or
o!!ensive is usuall) irrelevant to whether or not it is protected3 b) contrast*
in other nations particularl) harm!ul speech* such as hate speech* has been
deemed unprotected
B. Cohen v. Cali'ornia $87%: A man cannot be convicted !or 5o!!ensive
conduct6 !or wearing a 4acket with the statement 5Fuck the 1ra!t6 written on it in
a public courthouse. His action is pure speech* and its message cannot be
prohibited without violating the
st
amendment. His statement was not 5!ighting
words6 because it was not directed at a particular person* and no one seemed to
take o!!ense to it and no disturbances were caused. <he !act that it was thrust
upon unwilling viewers does not make it proscribable because in a public place
people are o!ten sub4ected to ideas the) do not agree with. <he state cannot !orbid
one epithet !rom the entiret) o! public discourse on the theor) that it will alwa)s
incite violence3 here that was clearl) not the case. <hat there are diverging
viewpoints e@pressed that some disagree with is a sign o! strength. <he state
cannot remove all words that are o''ensive to the most s:ueamish among us*
because 5one man"s vulgarit) is another man"s l)ric.6 Suppressing words leads to
suppression o! ideas* and the
st
amendment thus does not allow a state to make
the displa) o! an e@pletive a criminal o!!ense.
. Cohen was not inciting others to dodge the dra!t3 he was onl)
e@pressing his opinion about it $!ails clear . present danger* Branden$urg
and !ighting words tests%
#. because it is pure speech* onl) the manner* /=< the message* can be
regulated
'. the citiEens* not the state* will decide what speech the) want to endorse
and the !act that some will be o!!ended along the wa) is a necessar) side&
e!!ect to this process $marketplace o' ideas%
(. the Court !irst !inds that the speech does /=< !all into an established
unprotected categor)3 then it asks i! it SH=AL1 and decides that it should
/=<: wh) notB:
a. emotional +ualit) o! speech: writing 52 don"t like the dra!t6
would not have the same e!!ect
b. slipper) slope argument: could lead to too man) words* and too
man) ideas* being suppressed
-. dissent: <his is conduct* not speech* so it is not protected and can be
regulated under the !ighting words doctrine.
;. $ostile audience proble&
a. Feiner v. .ew ;ork $8-%: SC upholds conviction o! a speaker
whose words incurred approval and hostilit) !rom a crowd and
appeared about to start a !ight. Dhen the speaker passes the bounds
o! argument and undertakes to incite a riot* the police must be able
to stop a breach o! the peace.
b. problem: when speaker angers a crowd to the point o! hostilit)*
should the speaker or the audience members be arrestedB
c. dissent: <he speaker had a constitutional right to talk* and the
police have a dut) to arrest the audience members who are
threatening to riot* not the speaker.
C. <he &kokie Cases
. Collin v. &mith $879%: A cit) where man) residents are Holocaust
survivors cannot pass ordinances to prevent /aEi parades !rom happening
in their town. <he !act that speech invites anger and invites dispute is one
o! the high purposes o! the
st
amendment. An e@ception made !or this
incident would limit speech in other situations as well.
#. Aillage o' &kokie v. .ational &ocialist Part% $879%: <he cit) cannot
en4oin the displa) o! the swastika because it does /=< !all within the
de!inition o! !ighting words* but is s)mbolic political speech. <he
in4unction is a prior restraint and there is a heav) presumption against its
validit). <hose o!!ended b) the swastika have alread) been warned and do
not have to view it.
a. hostile audience: the possi$ilit% o! unlaw!ul conduct b) those
opposed to the speaker is not a ground !or prohibiting the speech3 a
hostile audience is /=< a basis !or restraining otherwise legal
st

amendment activit)
b. s)mbolic speech G action that is engaged in not !or the act but
!or the demonstration o! the idea $the reverse o! speech predated
with action* such as shouting !ire in a crowded theater%
c. some think hate speech should be an unprotected categor)* but it
is not $)et%
1. /otes on Fighting Dords
. has basicall) been subsumed b) Branden$urg
#. rationale: societ) does not want to promote the view that insults can
prompt the ordinar) person to throw the !irst punch
'. !ighting words v. clear . present danger
a. danger doctrine !ocuses on possible positive response to
speakers words3 !ighting words !ocuses on speci!ic negative
responses
b. danger doctrine looks at actual reaction o! actual listeners3
!ighting words !ocuses on possible reactions o! a 5reasonable
person6
F. =!!ensive Language: Constitution does /=< allow the government to decide
which kinds o! otherwise protected speech are su!!icientl) o!!ensive
. verbal assaults:
a. argument one: some speech is so o!!ensive as to constitute an
assault
b. argument two: as long as we live in an ugl) world* ugl) speech
must have a !orum
F. Hate Speech
. argument !or regulation: words ma) lead to violence and are
themselves harm!ul
#. R0A v. Cit% o' &t. Paul $88#%: An ordinance prohibiting placing
ob4ects on propert) that one knows will arouse anger in others on the basis
o! race* religion or gender is !aciall) unconstitutional and cannot be used
to convict a man !or burning a cross on the )ard o! a black !amil).
a. Scalia $ma4orit)%: <he statute is invalid because it prohibits
speech solel) on the basis o! content* and in particular it proscribes
a particular viewpoint* which is impermissible. Content
discrimination is presumptivel) invalid. 1ispla)s containing
abusive invective are permissible unless the) !all into an
unprotected categor)* which hate speech is not. *he statute does
not proscri$e 'ighting words $ecause it is $ased on the message o'
the speech9 not the mode $% which it is conve%ed. Dhile ensuring
human rights o! groups that have been discriminated against 2S a
compelling interest* the statute is not reasonabl) necessar) to
achieve that interest. A content&neutral alternative* banning all
!ighting words* is available. As it is* the statute allows all sorts o!
insults and hate!ul speech* 4ust not that aimed at race* religion or
gender.
i. sees cross&burning as more e<pression than conduct
ii. novel application o! strict scrutin): the law is invalid
and onl) a $roader one that proscri$ed more speech would
make it valid
iii. re4ects the secondar3 effects doctrine: the idea that
the conse+uences o! the speech 4usti!) its regulation $i.e.*
regulating where pornographic theaters are placed%* on the
ground that the statute is aimed purel) at the conduct* not
the e!!ect
b. Dhite concurring: 2! the government can regulate a categor)
$5!ighting words6%* then it can regulate a subset o! that categor)
$hate speech%. 1' the whole categor% is unprotected9 then the su$set
it also. <he 5underbreadth6 approach adopted b) the ma4orit)
invites evil e@pression to continue unless other e@pression is
banned. <he case should be decided under the overbreadth
doctrine: the state cannot prohibit words that 5b) their ver)
utterance6 cause anger or alarm because generaliEed reactions are
not su!!icient to strip e@pression o! protection.
i. Scalia"s use o! strict scrutin) standard is wrong because
he sa%s a law isn=t narrowl% drawn $ecause it=s not $road
enough9 and this makes no sense
c. Blackmun concurring: <he statute is overbroad $reaches
be)ond !ighting words% and should be struck down on that basis.
<he ma4orit) is wrong to use the case to e@press its own views on
political correctness and to rela@ strict scrutin) and in the process
weaken speech protection b) $oldin# t$at speec$ t$at causes
#reat $ar& can onl3 be re#ulated if speec$ t$at does not cause
#reat $ar& is re#ulated also.
i. hopes this case will not become precedent* and though it
has not been overruled it also has not reall) been !ollowed
d. Stevens concurring: Content&based regulations are /=<
presumptivel) invalid. <he
st
amendment prohibits !ighting
words b) their sub4ect matter. 2t is not true that when a categor) is
proscribable* the state must proscribe all or none. 2t can regulate
b) subset.
i. thinks cross&burning is more conduct than speech
'. Wisconsin v. 2itchell $88'%: A law that enhances criminal penalties
when the victim is selected because o! race does /=< violate the
st

amendment. A criminal assault is /=< protected e@pressive conduct* and
motive is o!ten a !actor in determining criminal penalties. <he law is
aimed at unprotected conduct* not e@pressive activit). <he state has a
reason $preventing bias crimes% independent o! its disagreement with the
view $the actual $ias% that 4usti!ies the law. *he persons are not $eing
punished 'or their $elie's9 $ut 'or 0C*1.5 on their $elie's in violation o'
the criminal law.
a. R0A statute punished e@pression* this punishes conduct
$debatable%
(. Dawson v. Delaware: A capital sentence based in part on the convicted
person"s membership in the Ar)an Brotherhood violates his
st
amendment
rights o! e@pression and association. <he di!!erence between this and
Wisconsin is that mem$ership in the group was .3* a part o' the
underl%ing conduct 'or which he was $eing punished.
G. Airginia v. Black $#::'%: A state ma)* consistent with the
st
amendment* ban
cross&burning with an intent to intimidate* but it ma) not allow the cross&burning
itsel! to be prima !acie evidence o! intent to intimidate. A cross&burning can be a
s)mbol o! hate $or ideolog)* or group solidarit)%* in which case it is protected as
core political speech* or it can be a power!ul message o! intimidation* in which
case it can $e proscri$ed as a true threat $even i! the threat is not carried out% or
'ighting words. A cross&burning used in this wa) is proscribable because it is
likel) to inspire !ear o! bodil) harm. However* the prima !acie evidence o! this
statute renders it unconstitutional. 2t creates an unacceptable risk o! the
suppression o' ideas* because merel) s)mbolic cross&burnings can be imputed
with an intent to intimidate. <he !act that a cross&burning engenders anger or
hatred is not a good enough reason to ban it3 there must be intent to intimidate.
<hus* a person $Black% convicted under the statute !or burning a cross with other
Ilan members at a meeting with the permission o! the owner o! the propert) is
di!!erent than a person $Flliott% burning a cross on his black neighbor"s lawn*
without permission* and in response to the neighbor"s complaints about his own
activit). <hus* Black"s conviction $where the prima !acie provision was used% was
unconstitutional. Flliott"s $where the prima !acie provision was not used% ma) or
ma) not be* and he can be retried i! the prima !acie provision is severable !rom
the rest o! the statute $i! it can be given a narrowing construction%.
. contrast Black w>Flliott: Black"s cross was not aimed at an) one
person3 more speech than threat
#. contrast GR)*: that statute was aimed at content $cross&burning !or
racial purposes%3 this one is aimed at all cross&burning w>intent to
intimidate* that"s wh) it survives where R0A"s !ailed
'. SC"s de!inition o! inti&idation: a true threat where a speaker directs a
threat to a person or group o! persons with the intent o! placing the victim
in !ear o! bodil) harm or death $would be a good one !or 0ASC to use in
narrowing the statute%
(. although the Court doesn"t !rame it this wa)* the statute is basicall)
o"erbroad: it punishes non&proscribable cross burnings $those that are
onl) e<pressive% along with proscribable cross burnings $those directed at
a particular person with an intent to intimidate%
-. Scalia concurrin#Gdissentin#: <he state ma) proscribe cross&burning
with the intent to intimidate* and the prima !acie provision does /=<
render the statute invalid. <he prima !acie evidence is accepted onl% i' not
re$utted. <he statute is not substantiall) overbroad because there are !ew
i! an) cases where a person will carr) out a cross&burning without an
intent to intimidate and choose not to put on a de!ense to show that this is
so. <hus* both Flliott and Black can be retried $Black"s conviction should
not be automaticall) overturned i! the de!ect was a 4ur) instruction%.
;. Souter concurrin#Gdissentin#: <he law is unconstitutional as a whole
under R0A. <he speci!ic prohibition on cross&burning with an intent to
intimidate selects a s)mbol o! particular content !rom the !ield o! all
proscribable e@pression meant to intimidate. <he ideological message
accompanies both threatening and non&threatening uses o! the s)mbol*
thus the statute will alwa)s tend to suppress a message. /o content&based
statute should survive R0A without a high probabilit) that 5no o!!icial
suppression o! ideas is a!oot.6 <his case is about a clearl% content($ased
statute that wishes to be e@cepted !rom the general prohibition against
content&based statutes. 2t cannot be e@cepted* however* because the
provision clearl) shows that suppression o! ideas is a!oot. 2t is clear !rom
the prima !acie evidence provision that that is what is happening here. 0n
intimidation case $ased on cross($urning is eas% to makeB thus the
provision tends to prove that the legislature is reall% tr%ing to suppress the
message. Both Black"s and Flliott"s convictions should be overturned and
neither should have to be retried.
a. the interest in preventing intimidation could be easil) served b)
a content&neutral statute3 thus this one is unconstitutional because
it is not narrowl) tailored
b. t$is opinion is &ost fait$ful to R)*
7. <homas dissent: Cross&burning is conduct* not speech* and the
ma4orit) errs in giving it an e@pressive component. Just as one cannot
burn down someone"s house to make a political point* one cannot burn a
cross to make their point. <hus* the statute does not implicate the
st

amendment. A statutoril) supplied in'erence that is re$utta$le is also not a
constitutional problem. <he 4ur) must still !ind each element* including
the intent* be)ond a reasonable doubt. <here!ore* both convictions should
be upheld.
a. the statute was passed b) segregationists $it"s old* predates
Brown%* so those who passed it were in all likelihood not
concerned with the message* the) were concerned with the conduct
9. contrast true t$reats GBrandenburg: true threats do /=< have an
imminence re+uirement
8. intent: should the intent o! the person matter i! the probable
conse+uence is that a person will !eel threatened an)wa)B
AI. Expressi"e Conduct
A. s)mbolic action G when conduct is used to communicate ideas $the medium is
the message%
. mi@ed elements o! conduct and speech: the conduct has
communicative aspects
B. +& v. 3=Brien $8;9%: A !ederal law barring mutilation o! dra!t cards is /=<
unconstitutional and a person can be convicted !or burning a dra!t card without
his
st
amendment rights being violated. First* the statute is not unconstitutional
as applied to the individual who means to communicate ideas b) burning the card.
*he Court will not accept the idea that an apparentl% limitless variet% o' conduct
can $e la$eled ,speech- whenever the person engaging in the conduct intends to
e<press an idea. Whenever speech and nonspeech elements are com$ined in the
same course o' conduct9 an important government interest in regulating the
nonspeech elements can justi'% incidental limitations on the speech. T$e
#o"ern&ent re#ulation is sufficientl3 <ustified $en it 7'9 is it$in t$e
constitutional poer of #o"ern&ent 7=9 furt$ers an i&portant or substantial
#o"ern&ental interest 7(9 if t$e #o"ern&ental interest is unrelated to
suppression of expression 7,9 t$e incidental restriction on alle#ed '
st

a&end&ent freedo&s is no #reater t$an is essential to t$e furt$erance of t$e
interest $="Brien test%. 2n this case* government has substantial constitutional
power to raise and support armies and the dra!t s)stem !urthers that interest. <he
dra!t cards !urther the interest b) !acilitating communication between registrants
and dra!t boards. <hese interests and means used to achieve them are not meant
to suppress speech $the speech is not targeted%. <here is no alternative means that
would better serve this purpose* and the laws are limited entirel) to the nonspeech
element o! the conduct. Secondl)* the Court will not in+uire into the purpose o!
Congress to see i!* as ="Brien states* the legislation is reall) meant to suppress
speech. Dhat motivates one legislator ma) be di!!erent !rom what motivates
another* and all might be motivated b) multiple !actors* and the Court will not
guess what all the motivations are.
. le#islati"e purpose: the purpose o! this law probabl) was to prevent
events like these* but courts are war) o! in+uiring into legislative purpose:
it can be used either to validate or invalidate a law* and legislatures can
alwa)s 4ust sa) di!!erent things i! the) know courts are going to in+uire
a. but note that motive 2S re+uired in e+ual protection anal)sis
#. SC has protected s)mbolic speech: black armbands in *inker3 students
not re+uired to pledge the !lag
a. conduct not prohibited b) statute and no legitimate
governmental interest
'. criticis& of O01rien test: it is toothless and gives too much de!erence
to the government3 most agree that at least an intermediate standard o!
review should be used but this is little more than rational basis3 should
re+uire actual narrow tailoring $prong R( is less than narrow tailoring%
a. the Court has never used it to invalidate laws that incidentall)
burden e@pressive conduct3 thus it reall) is a waivable presumption
that such laws do not violate the
st
amendment
(. Harlan concurring: *here are man% other wa%s that 3=Brien could
have e<pressed his view.
C. Rums'eld v. F01R $#::;%: <he Solomon Amendment* which re+uires that
universities must give militar) recruiters e+ual access to students as that given to
other recruiters or lose certain !ederal !unds* does /=< violate the universities"
st
amendment !reedoms o! speech and association. Congress has broad authorit) to
raise armies and provide !or the common de!ense $3=Brien prong R% and thus the
e+ual access re+uirement could be imposed directl%* even without t)ing it to the
'unds* so the unconstitutional conditions doctrine $holding unconstitutional a
polic) that !orces a person to choose between constitutional rights and !ederal
!unding% is not violated. <he Amendment regulates conduct9 not speech. 2t does
not re+uire the law schools to speak the government"s message. <his is not a case
o! co&pelled speec$ such as cases holding that students do not have to pledge the
!lag* because the government is not !orcing the schools to sa) an)thing* onl) to
accommodate the speech o! others. Asking a law school to send an email stating
that a militar) recruiter is on campus is not the same as asking a person with
religious ob4ections to pledge the !lag* and it trivialiEes that !reedom to sa) that it
is. <he militar)"s message does not inter!ere with an)thing the law schools might
want to sa). <he conduct regulated b) the Amendment is /=< inherentl)
e@pressive. Combining speech and conduct does not automaticall) make
e@pressive conduct* or else an)thing could be made e@pressive 4ust b) talking
about it. Ander 3=Brien* this neutral re#ulation pro&otes a substantial
#o"ern&ent interest t$at ould be ac$ie"ed less effecti"el3 absent t$e
re#ulation. <he Amendment also does not in!ringe on the right o! e@pressive
association* as in Dale* because the recruiters are /=< becoming part o! the law
school.
. the Amendment is not aimed at the content o! a school"s recruiting
polic) but at the result
#. '
st
amendment issues:
$% the right not to be compelled to speak
SBarnette: Jehovah"s Ditnesses cannot be compelled to
sa) Pledge in school
SWoole%: JD"s cannot be compelled to have state license
plate with 5Live Free or 1ie6 on it
Sin this case* the) are /=< re+uired to sa) an)thing
$#% test !or activit) that has communicative elements
SSC sa)s it"s conduct and it satis!ies ="Brien
Srelies on 0l$ertini* which is slightl) di!!erent test than
="Brien: i! government"s ob4ectives would be achieved
less e''ectivel% b) another method* then the !irst method
prevails $this is di!!erent than no greater than essential%3 a
more de!erential test to the government
$'% right o! e@pressive association
SB&0 v. Dale: an organiEation has a right to de!ine itsel! b)
keeping out members that it does not approve o!
SSC said that access does not e+ual association3 FA2, is
still !ree to state its disapproval3 the militar) recruiters are
not 4oining the law school* the) are onl) visiting it
AII. Public .oru& /octrine
A. 0rkansas 8ducational *elevision Commission v. For$es $889%: Public
broadcasting in general is not sub4ect to the public !orum doctrine because it
re+uires 4ournalistic discretion and stations do not* and cannot because o! time
constraints* have to open themselves up to ever) third part) that wants access. B%
its nature9 $roadcasting must e<press some views instead o' others and must
discriminate $% content. <o re+uire that would re+uire the courts to have a huge
role in what broadcasters decide to air. 0 candidate de$ate9 however9 is a narrow
e<ception to the rule. Because the views are those o! the candidates* not the
broadcaster* and because o! the uni+ue role o! candidate debates to the electoral
process*
st
amendment concerns are implicated. However* the $roadcaster does
not have to open up the de$ate to ever% candidate who wants to participate.
What is important is that the $roadcaster C0..3* include or e<clude a
candidate on the $asis o' his or her views. <he debate is a nonpublic foru& $see
below%* which means that the government can e@clude a speaker so long as the
e@clusion is $% not based on the speaker"s viewpoint and $#% reasonable given the
purpose o! the propert). 2n this case* the candidate was e@cluded because he had
generated no appreciable public interest* not because o! his views. <his was a
reasona$le9 viewpoint(neutral e@ercise o! 4ournalistic discretion.
. t3pes of foru&s
a. traditional public !orum: traditionall) open to assembl) and
debate* such as parks
i. open 'or e<pressive activit% regardless o' government
intent or choice
ii. sub4ect to time>place>manner regulations but no others
iii. content&based regulations will be evaluated b) strict
scrutin)
b. designated public !orum: created b) purpose!ul governmental
action to be availa$le to all groups* such as when a universit)
opens meeting !acilities to all student groups
i. general access 'or a class o' speakers
ii. content&based regulations will be evaluated b) strict
scrutin)
c. nonpublic !orum: government creates selective access 'or
individual speakers
iii. content&based regulations are allowed and will be
evaluated !or being reasona$le and viewpoint(neutral
iv. t$is is t$e standard for +orbes
d. can also be no !orum at all
#. i! the station had to include ever)one* it probabl) wouldn"t have the
debate at all
'. Ste"ens dissent: 08*A is a public broadcaster* which means the) have
di!!erent responsibilities than private broadcasters. *he% cannot re:uire
prior restraint o' a license without giving narrow and o$jective guidelines
as to how the license to speak will be given* and the) have not done so in
this case. 0 state(owned network that is regulating speech in democratic
government should not $e given de'erence in this wa% $ecause to do so
invites government censorship and propaganda in a wa% that private
$roadcasting does not. <he state needs to set meaning!ul boundaries in
order to 4usti!) its decision not to admit a candidate* especiall) one who
actuall) had garnered signi!icant support in past races $and who even i! he
got a little bit o! the vote might change the election outcome%. <he)
cannot 4ust make wholl) sub4ective decisions. *he criteria must $e pre(
esta$lished in order to ensure !airness to candidates. 2n this wa)* the) do
not have to admit ever) candidate to the debate* but the process will
ensure candidates are not being e@cluded !or their views.
a. ) law sub!ecting the e"ercise of &
st
amendment freedoms to
the prior restraint of a license, without narrow, ob!ective, pre-
determined and definite standards to guide the licensing
authority, is unconstitutional
b. believes this is a li&ited public foru&
c. 5constitutionaliEing the gatekeeper6: the rationaliEation
CA//=< come a!ter the !act
AIII. Co&&ercial Speec$
A. commercial speech occupies an intermediate place: it does not have the !ull
protection o! political speech but does not have the total absence o! protection like
obscenit)
B. Aalentine v. Chrestensen $8(#%: Commercial speech is totall) outside the
ambit o! the
st
amendment and thus an anti&litter ordinance can be en!orced
against an e@hibitor distributing an advertising handbill.
. comes !rom conte@t o! 4ochner: did not want !ederal courts inter!ering
with state economic issues3 states can regulate advertising however the)
want
C. Airginia &tate Bd. o' Pharmac% v. A0 Citi7ens Consumer Council $87;%: A
0irginia statute prohibiting pharmacists !rom advertising the price o! prescription
drugs violates the
st
amendment. <he !ree !low o! in!ormation to consumers so
that the) can make in!ormed choices is protected b) the
st
amendment* even i! it
is not as highl) protected and is more sub4ect to regulation than political speech.
. commercial speech can be regulated more because o! its 5#reater
ob<ecti"it3 and $ardiness6: its truth is more easil) ascertainable* and
because its purpose is to gain a pro!it it will not be chilled b) regulation
#. it ma) also be acceptable to re+uire some in!ormation on commercial
advertising $i.e.* cigarette warning labels%
'. ?iekle4ohn view: in!ormation is needed !or citiEen decision&making
(. does not re4ect Aalentine entirel): provides some protection but not the
same as political speech
-. does not mention standard o! review
1. Friedman v. Rogers $877%: A state statute providing that optometr) could not
be practiced under a trade name is upheld because the trade name* unlike price*
has no intrinsic meaning !or the consumer.
F. Central )udson 5as > 8lectric Corp. v. Pu$lic &ervice Comm=n $89:%:
Fstablishes a test !or commercial speech: 7'9 does t$e co&&ercial speec$
in"ol"e ille#al acti"it3 or false or &isleadin# conduct@ $i! so* completel)
unprotected%3 7=9 is t$e #o"ern&ental interest in re#ulation substantial@ $in
this case )es* it"s designed to limit use o! energ) during energ) crisis%3 7(9 does
re#ulation directl3 ad"ance t$e asserted #o"ern&ental interest@ $in this case
)es* it does advance the interest in energ) conservation%3 7,9 is #o"ern&ent
re#ulation no &ore extensi"e t$an necessar3@ $in this case %es* it is more
e@tensive than necessar)* and because o! that the regulation 'ails%. <he ban on all
advertising b) utilities was more e@tensive than necessar)* so it !ails prong (.
<his test is an intermediate standard o' review !or commercial speech* or a
balancing test.
F. Bd. o' *rustees o' &+.; v. Fo< $898%: SA/C placed a ban on <upperware
parties on its campuses and <upperware sued. <he SC upheld the ban in a Scalia
opinion that weakens the (
th
part o! the Central )udson test: all that is needed to
satis!) the (
th
prong is i! the regulation at issue is the least severe that will achieve
the desired end3 must be a ,reasona$le 'it- $etween the means used and the ends
to $e securedF a more de'erential standard.
G. Posadas v. *ourism Co. o' Puerto Rico $89;%: A Puerto ,ico statute that
allows gambling and allows it to be advertised in the mainland AS but /=< in P,
is constitutional under the Central )udson test. T$e #reater includes t$e lesser:
i! P, can ban gambling altogether* then it has wide latitude in regulating its
advertising.
H. ?? 4i:uormart v. Rhode 1sland $88;%: A state cannot ban truth!ul advertising
o! li+uor prices ever)where but at the place o! sale consistent with the
st

amendment. <his is true despite the !act that the states can* under the #
st

amendment* regulate the sale o! li+uor $#reater does NOT include t$e lesser
and ='
st
does NOT tru&p t$e '
st
%. A complete speech ban $as opposed to a
time>place>manner regulation% based on the content o! the advertising re+uires
rigorous review. Although the state ma) have a substantial interest in temperance*
it has not shown that this regulation has a reasona$le 'it to meet that end. A
number o! non&speech&restrictive measures* such as education programs or
increased ta@ation* could meet the state"s goals without restricting speech.
Posadas erred in holding that the government could choose suppression over a
less speech(restrictive polic%. ,egulating speech is considered more dangerous
than regulating conduct b) the
st
amendment* and the !act that a government can
suppress conduct does /=< mean that it can suppress speech. <here is no 5vice6
e@ception as it would be di!!icult to de!ine.
. basicall) uses Central )udson test but seems to be arguing !or strict
scrutin% o! truth!ul advertising
#. ="Connor concurrence: should use less&strict Central )udson test and
no need to overrule Posadas.
'. .udson test is still t$e rule> but $en t$e issue is trut$ful
co&&ercial ad"ertisin#8 it0s closer to strict scrutin3 t$an inter&ediate
II. Obscene Speec$
A. not protected3 all states have had statutes barring obscenit)
. +uestion becomes what 2S obscenit)
B. Histor)
. Regina v. )icklin $K.B. 9;9%: <est o! obscenit) is what is obscene to
the most suscepti$le person: leaves little room !or an) protection !or a
great deal o! material. Leads to things not o!!ensive to most people being
censored.
#. Roth v. +.&. $8-7%: <est o! obscenit) is whether to the average
person9 appl%ing contemporar% communit% standards9 the material taken
as a whole appeals to the prurient interest. 2t also must be clear that the
material has no redeeming social importance. Courts subse+uentl)
approached obscenit) as a narrow e@ception: that it is not intended to
censor a great deal o! material* onl) a ver) small part. Changes standard
!rom most susceptible person to average person.
'. Fannie )ill 2emoirs case: !or a work to be obscene* must have '
components: $% o!!ensive to the average person $#% patentl) o!!ensive
because it a!!ronts communit) standards $'% utterl) without an) redeeming
social value. But* onl) ' 4ustices supported this test* which is more
libertarian than Roth.
C. 2iller v. Cali'ornia $87'%: =bscene material is unprotected b) the
st

amendment. <he 2emoirs test o! what is obscene is not workable because it
re+uires prosecutors to prove a negative. Obscenit3 is or! t$at depicts or
describes sexual conduct as defined b3 applicable state la. It is li&ited to
or!s $ic$ 7'9 appeal to t$e prurient interest in sex 7=9 portra3 sexual
conduct in a patentl3 offensi"e a3 7(9 do not $a"e serious literar38 artistic8
political or scientific "alue. <he guidelines !or the trier o! !act are whether the
average person appl)ing contemporar% communit% standards would !ind that the
work $% appeals to the prurient interest and $#% depicts se@ in a patentl) o!!ensive
wa) and $'% is without other value. 8ach state must come up with its own
guidelines9 which can var% $% jurisdiction as what is accepta$le varies $%
jurisdiction. <he main idea is that $ard;core porno#rap$3 is not to be
tolerated and that <urors ill be best;e?uipped to deter&ine $at offends
co&&unit3 standards.
. To su&&ariJe- 7'9 obscenit3 is not protected b3 t$e '
st
a&end&ent
7=9 obscenit3 can be re#ulated b3 t$e states without a s$oin# t$at t$e
&aterial is utterl3 it$out redee&in# social "alue 7(9 obscenit3 is to
be deter&ined b3 contemporary community standards8 not national
standards.
#. obscenit) does /=< include violent or other o!!ensive material
'. e!!ect o! this is to keep most obscenit) cases in state courts
(. states must give e@amples o! what is protected $i.e.* medical books% and
not protected $see e@amples in opinion% to give dealers !air notice
-. this standard is !airl) speec$;protecti"e
I. Indecent Speec$
A. FCC v. Paci'ica Foundation $879%: <he FCC has the power to regulate
speech that is indecent but not obscene. 2ndecenc) is a !unction o! conte<t and
cannot be 4udged in the abstract. <he
st
amendment does not !orbid the
government !rom regulating indecent speech in all circumstances. Broadcasting
has been sub4ect to the most regulation under the
st
amendment because o! its
per"asi"e presence and its uni?ue accessibilit3 to c$ildren. <hus* the decision
b) the FCC to ban Carlin"s Filth) Dords monologue !rom being pla)ed during the
da)time is acceptable under a nuisance rationale: it ma) be the right thing in the
wrong place. <he holding is narrow* because each broadcast must be considered
individuall) in light o! surrounding circumstances.
. channeling concept: can"t prohibit indecenc)* but can restrict it b)
time>place>manner regulations
#. indecent e@pression G that which is not obscene but o!!ends
'. 1rennan dissent: W$at does not fall into an unprotected cate#or3
is full3 protected* so the monologue is protected. Listeners who do not
want to hear it can turn it o!!* and those who do want to hear it are entitled
to a message that is worth) o! !ull
st
amendment protection. Parents* not
the government* should decide what children listen to. <he public is !ree
to pick and choose what it deems to be o!!ensive3 the government should
not do it !or them.
(. contrast: Dial(0(Porn case: cannot be banned because there is no
5captive audience6 problem3 listeners need to take active steps to get the
in!ormation.