Con Law 1

I.

Standards of Review

A. Rationality Basis ReviewAll laws challenged under due process clause or equal protection must at least
meet this.
Law will be upheld if its rationally related to a legitimate government purpose.
The goal need not be the actual purpose of litigation, but, rather, any conceivable legitimate purpose is
sufficient.
Challenger of law has the burden of proof.
Enormously deferential to the government.
B. Intermediate Scrutinysubstantially related to an important government purpose
Govts purpose = more than just a legitimate goal for govt to pursue, court must regard it as important
The means chosen must be more than a reasonable way of attaining the end.
Used in evaluating laws involving gender discrimination, discrimination against non-marital children,
and regulation of commercial speech.
Govt has the burden of proof.
C. Strict Scrutinynecessary to achieve a compelling government purpose
Requires proof that the law is the least restrictive or least discriminative alternative.
Govt must show law is narrowly tailoredtight fit between means/ends.
Used in evaluating discrimination based on race or national origin, interference w/fundamental rights
such as the right to vote, travel, privacy, speech

II. Free Exercise of Religion

1.

(Fed/State Laws) 1st AmendmentFEC: SmithIf neutral/gen app rationality

LukimiIf not neutral/gen app SS
Believer must show substantial burdenlaw makes the practice impracticable
2. (Fed Laws ONLY) RFRAneutral/general app SS
If the believer raises objection, MUST show substantial burden.
3. (State Law) RLUIPAProvides RFRA to land use/state prisons/VA hospitals
4. (State Law) 15 State RFRAssame standard as federal RFRA
5. State Constitutionssome mirror Smith; some resemble Lukimi
Always look at objective purpose of the law
Discriminatory Purpose shows that there is a distinction being drawn.
If youre applying IS: what is the distinction? Does govt has important interest? If so, is it substantially
tailored between the means and the end?
If youre applying SS: what is the distinction? Does govt have a compelling interest? If so, is it the least
restrictive means?
If youre applying RR: Does govt have a rational interest? No tailoring interest.
A. You have no right to carve out portions of the law that you find inconsistent with your religious conduct.
1. Reynolds v. US (1878): (RR) P was charged with bigamy. He pleaded not guilty, but was found guilty.
He let the court know that he was a member of the Mormon Church. Mormons believe in polygamy.
a. The First Amendment protects religious belief, but it does not protect religious practices
that are judged to be criminal such as bigamy.
The anti-polygamy law wins because the court holds that your opinions and beliefs are
protected, but not your actions. Once your beliefs break out into conduct, the govt has the
capacity to act. It is not that Congress law says you may not believe in polygamy, but Cong says
you cannot act in accordance to those beliefs.
The court is concerned about every individual making law onto them.
The laws that are duly enacted by the LEG are applied to everyone. You cannot just say you
have a religious belief and avoid a law that applies to everyone else.
Plurality: There must be a substantial burden on the religion believers conduct. A diminimus
burden is not enough.
2. Braunfeld v. Brown (1960): P, an orthodox Jew closed his biz on Sabbath and wanted to open biz on
Sundays which was against PAs blue law which only allowed certain bizs to remain open, not his.
Challenged the law as a violation of religious liberty clauses.
a. The freedom to hold religious beliefs/opinions is absolute; however the freedom to act
(even in accordance w/ religious convictions, is not totally free from govt restrictions.
Not the same as Reynolds because its not like the believer is told that he can never do
something, P here can have his biz but he cannot open it on 1 day when he would normally be
capable of doing it & for religious reasons, he has to close on a different day.

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Govt interest = having a day of rest. The diminution of P here not being able to work 1 day does
not overcome the govt interest.
An insubstantial burden is not going to be enough to trigger free-exercise protection.
B. Substantial Burden = Free exercise protection
1. Sherbert v. Verner (1962): (SS) P a member of 7th day Adventist Church was fired from her job when
she refused to work on Sabbath day. SC Employment Security Comm. denied her benefits = not
approving justification of work absence.
a. States eligibility restrictions for unemployment compensation imposed a significant
burden on Ps ability to freely exercise her faith. Believer has to choose between work and faith.
Court says normally we do not apply SS in these cases but we should apply it in circumstances
where we permit exceptions for secular reasons but not for religious reasons.
SS is triggered when the govt does not have an evenly applied set of rules. When it grants
exceptions!
Use SS when there is a potential for discrimination against religious actors and/or
religious and secular are being treated differently. (USED TODAY!)
2. Wisconsin v. Yoder (1971): (SS) Ps were parents who went against WI law requiring kids in school till
age 16 by removing their kids after 8th grade arguing that it was contrary to their religious beliefs =
learning things for the agrarian society.
a. Individual's interests in the free exercise of religion under the First Amendment
outweighed the State's interests in compelling school attendance beyond the eighth grade.
This is the only case where the court applies SS to a neutral and generally applicable law. They
take the Sherbert test and apply it in the neutral and general applicable law.
States interest: We need a well-educated citizenry or else our representative democracy
system fails. Not compelling enoughadditional 1 or 2 years in high school wont produce
this but will harm the Amish!
This case = Free exercise claim + Parental rights claim = SS
C. Current Doctrine
1. Employment Division v. Smith (1990): P sought employment benefits after he was fired from his job for
using peyote in a religious ceremony. ORSC ruled P should be given them per Free Exercise right.
a. Free exercise clause protects against many things but NOT neutrally applicable laws that
regulate conduct.
Case looks more like Reynoldsbecause prohibition applies to everyone; NOBODY gets to use
peyote in Oregon. Violate this state law = firing w/no compensation.
Smith standard= NEUTRAL & GEN APPLICABLE does not trigger SS
2. Church of Lukimi v. City of Hialeah (1993): (SS) P practiced Santeria (animal sacrifice). Town adopted
several ordinances addressing religious sacrifices one of which banned the possession of animals for
sacrifice or slaughter w/o specific exemptions for state-licensed activities.
a. Ordinances are NOT neutral or generally applicableMUST be justified by a compelling
governmental interest and be narrowly tailored to that interest.
Ordinances just applied to the church & singled out activities of Santeria faith.
Facially neutral but not generally applicable. (religion v. religion not religion v. secular)
Only conduct tied to religious belief was burdened.
Laws that target religious behavior FAIL to survive SS.

III. Statutory Free Exercise

A. Religious Freedom Restoration Act of 1993adopted to negate the Smith test and require SS for all Free
Exercise Claims.
Provides a claim or defense to persons whose religious exercise is substantially burdened by govt.
Uses compelling interest test.
1. City of Boerne v. Flores (1996): Archbishop sued local zoning authorities under RFRA for denying
him a permit to expand his church. City had designated the churchs location as a historic area = no
new construction. City argued that RFRA was uncons because it sought to override its right to its
local preservation ordinance. 14th Amendment Enforcement Claim
a. Under the RFRA, the government is prohibited from substantially burdening religion's
free exercise unless it must do so to further a compelling government interest, and, even
then, it may only impose the least restrictive burden.
RFRA unconstitutional as applied to state/local govts.
Congress lacks authority under Section 5 of 14th Amendment.

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2.

3.

Cutter v. Wilkinson (2005): OH prisoners alleged prison violated RLUIPA by failing to

accommodate inmates exercise of their non-mainstream religions. OH lost & argued that RLUIPA
improperly advanced religion & violated 1st Ams EC.
a. Since the prisoners faced a government-created burden, the balanced tipped more
towards the Free Exercise Clause and OH must provide accommodations.
Govt may accommodate religious practices w/o violating Establishment Clause.
Prisoners dependent upon govtstd for accommodation is heightened bc they cant
worship w/o institutions assistance. Accommodation is assessed by the treatment of
outsiders.
Under EC, govt must take a neutral position on religion and cannot prefer religion as
opposed to irreligion.
After Smith, if govt were to offer peyote exemption for NA, it would be uncons. Has to be
practice specific and NOT specific to people.
Hamiltons Hypossee class notes for all of them
a. Religious group from SAbelieve in use of hallucinogenic tea DMT during religious services. Do
drug laws apply to them?
Group argues cons right to use teaRFRA claim
Under FECneutral & gen app law: no discriminatory purpose for adding DMTits on banned list.
Under RFRAtheyd win substantial burden.
Govt must show compelling interestCI for keeping schedule I drugs away from
individuals.
SC rules that an exemption for one drug doesnt mean one for another. Constitution says
permissible but not requiredbut govt chose RFRA so there needs to be consistency.
Govt allowed peyote exemption for NA so DMT should be allowed.
Least restrictive means requirement? LRM is to let this group use because they use it in
private in their service and no ones been hurt.
Goal is to protect people. No harm = no necessary req for protection.

IV. Rights Against the States & Incorporation

Incorporation
Incorporation: First amendment ratified to apply solely to Congress to allow the states to continue to have
sedition and anti-blasphemy laws.
Now 14th amendment is enactedbut will the states be limited by the bill of rights though its not
explicitly listed.
Heller case: 2nd amendment is a right that pertains to private individuals. Right to bear arms for self defense in
ones home.
Macdonald: Whether the 2nd amendment is going to apply to states & local governments. (YES)
Whether Chicago must require the registration of handguns (sent back to the courts below)
- Scalias concurrence: shows court operates in incremental way
Reverse Incorporation: When the 5th amendment incorporates the 14th amendments equal protection clause.
- Ex: Federal government cant discriminate on the basis of race. Constitution is silent on that.
- Shared values against discriminationits located in the due process clause of the 5th amendment. Due
process clauses in 5th and 14th amendment are container clauses.
- Avoids a ratification/amendment process.

V. Equal Protection Classifications Based on Race

A. Before 13th and 14th AmendmentsCourt enforced the institution of slavery by ruling in favor of slave
owners against slaves.
Prigg v. PA: state law is unconstitutional that prevented the use of force to remove any person from the
state to return the individual to slavery.
Court relied on Fugitive Slave Act of 1779 & Fugitive Slave Clause to invalidate the PA law.
Dred Scott v. Sandford (1857): J. Taney asks: Can a black slave be entitled to all rights/privileged of a citizen?
Missouri Compromise is unconstitutionalslave = property and not citizen
Court reaches formalistic holdingwho is a citizen?
B. 14th Amendment (1868): long purpose to protect AAs.
Section 1 overrules Dred Scottall persons born or naturalized = citizens
No state law shall deprive any citizen of privileges or immunities of citizenshipequal protection of
the laws

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C.

Strict Scrutiny for discrimination based on race and national originKorematsu v. US (1944) upheld
constitutionality of the relocation of Japs during WWII.
1. Plessy v. Ferguson (1896): Govt can no longer make decisions based on race.
Separate but equalboth races treated identically; neither can sit w/the other.
Legislation is powerless to eradicate racial instincts/abolish distinctions based upon physical
differences.
Equality = treat races the same.
Initial Attack on Separate But Equal
Sweatt v. Painter (1950): SC ordered that a white university admit a black student. UTexas denied
student admission on the grounds that he could attend another school.
Court was urged to reconsider Plessyit didnt and found the schools were obviously unequal.
Court isnt eager to change doctrine because change may delegitimize the Court.
3. Johnson v. California (2005): CADOC had unwritten policy of segregating prisoners in reception
centers for up to 60 days upon arrival at new correctional facility.
a. Ct rejected Ds no SS argumentcould have been well tailored; other initiatives exist
The Role of Discriminatory Racial Impact and How to Prove Discriminatory Purpose
1. Some laws are facially neutral and are administered in a manner that discriminates against minorities
or has a disproportionate impact against themthere must be proof of a discriminatory purpose to
be treated as racial or national origin classifications.
Discriminatory effect can be apart of the circumstantial evidence to prove discriminatory purpose
BUT it cannot be the sole evidencemust have something more.
Motive cannot be the standard for constitutionalityits impossible to ascertain
Indicators of purpose: statutory language, the way instructions are written, the way something is
administered.
2. Washington v. Davis (1976): PD administers entrance exam & more blacks than whites fail the test. Dist
Ct found test was not discriminatory merely bc of effect.
a. A law does not violate equal protection simply bc it may affect a greater population of one
race than another.
The invidious discriminatory purpose behind it may be inferred from the totality of the
relevant facts, including the statistical evidence that it bears more heavily on one race rather
than another.
If disproportionate effect on a racial minority, must first determine if the law is race specific.
If it is, either because the law is facially discriminatory or because the law was motivated by a
racial discriminatory purpose, the law will probably be invalidated under the strict scrutiny
standard of review.
If the law is non-race specific, the court will apply the rational basis standard of review,
regardless of the laws impact on racial minorities.
3. McCleskey v. Kemp (1987): P charged with burglary/murder of a cop in GA = death penalty. D claimed
GA had a racially discriminatory sentencing system based on the Baldus study that argued race entered
into the decisions of jurists when deciding death penalty sentences.
a. D had to prove that the decision makers in his case acted with a discriminatory purpose
horrible effect does not = purpose.
De Facto discrimination may be happening due to private factors affecting the jury but Court is
concerned with De Jure discrimination.
Cant bring cases based on sociological studies, Judges are not arbiters of sociologydebunks
the studies used in Brown.
b. Palmer v. ThompsonIs the govts response to shut down pools because people are discriminating
constitutional?
All races are treated equally by doing so
Pools are not essential.
People of Jackson, MS have the right to discriminate, but govt has the power to maintain order.
4. Proving DP: Personnel Administrator of Massachusetts v. Feeney (1980): P claims that by having a
hiring preference for veterans over non- veterans for civil service positions, D is discriminating against
women. Dist Ct found that this practice has a severe impact on job opportunities for women, since most
of the veterans are men.
a. The benefit of this act was offered to any person who was a veteran. The law is a preference
for veterans of either sex over non-veterans of either sex. It was not designed to favor men
over women.
Law is gender neutral even though it significantly impacts one over the other.

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C.

DP= decision maker reaffirmed a particular course of action because of its adverse
effects upon an identifiable group.
b. Village of Arlington Heights v. Metropolitan Housing Development Group (1977): Corp contracted
with town to build racially integrated low/moderate income housing. When corp applied for
zoning permits to switch from single to multiple-family classification, towns board denied it. Corp
challenged on behalf on itself/minority members for racial discrimination.
Though zoning denial may have racially disproportionate impact, you have to show deliberate
intention.
Racial Remedies: Schools
1. Brown v. Board of Education (1954): Separate but equal impermissible in public education. Purpose
was to eliminate Plessy from the books.
Looks past the equalization of tangible factors such as curricula, building, etc.
Looks at effect of segregation on pub edugenerates a feeling of inferiority as to their status in the
community in a way that is likely to never be undone.
a. Desegregation of Southread and put it away. Decision treated as an advisory opinion.
b. Brown says segregation is illegal, but doesnt say integration is required.
2. Swann v. Charlotte-Mecklenburg Board of Education (1971): Many districts still remained segregated.
School districts brought suit, alleging that District Courts had overreached their authority, broad as it
may be, under Brown II.
a. The scope of District Court authority is broad, but enters only when local school districts
have not voluntarily brought themselves into compliance with Brown I/II.
Mathematical racial quotas are an allowable exercise of judicial authority, when used as a
starting point after a total default of the school boards duty.
The court should scrutinize such schools, and the burden is on the school district to
demonstrate that the schools racial makeup is not the result of past or present de jure
segregation.
Appropriate remedy: Busing is an appropriate remedy, as well, as long as the time involved
in the busing does not risk the health of the children or significantly impinge on the
educational process.
3. Milliken v. Bradley (1974): Suit charging Detroit schools as racially segregated filed against Governor.
Dist ct ordered the adoption of a desegregation plan. Lower ct found that the Detroit only plans were
inadequate. Appeals affirmed METRO plan.
a. Dist cts cannot redraw the lines of integrated school systems to achieve racial balance in a
segregated school system absent an interdistrict violation or effect.
The scope of the remedy is determined by the nature/scope of constitutional violation.
Discriminatory acts of a single district must be a cause of interdistrict segregation.
First case since Brown that reigned in on the fed ct power to remedy public school segregation.
When Should Federal Desegregation Remedies End?
4. Board of Education of Oklahoma City Public Schools v. Dowell (1991): Dist ct issued an injunction for
BOE to bus black kids to white schools then later withdrew the enforcement of the plan when BOE had
complied/goal was reached. In 1984, BOE passed a new plan, which lessened busing to reduce travel
time for black students. Original segregation protestors asked to restore court ordered desegregation.
Dist ct declined, USApp said that the injunction was never formally removed but declined to restore
because it said busing plan was unworkable. State Ct reversed.
a. Dist Ct authority over school districts extends only until the districts in question have
complied with the injunctions long enough to reasonably redress past segregation.
The majoritys primary concern is for returning control of the school districts to local
authorities.
They balance the needs of desegregating the schools with the knowledge that not all
segregation is de jure and perfect racial balance is just not possible in some situations.
Reasonable compliance to correct past wrongs is the standard put forward.
5. Parents Involved In Community Schools v. Seattle School District No. 1 (2007): D has app that requires
parent to state race of child. School then uses race when determining where to place a child or where to
transfer them. D allows students to choose high school but when too many choose the same one, race is
a factor. D has a 50% quota for black students in its effort to desegregate.
a. School plans that use race alone as a qualifying criterion for school assignments are
unconstitutional.
In order for a state actor to engage in discriminatory actions it must do so in a way that is
narrowly tailored to achieve a compelling state interest.

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The only interests recognized by this court are: 1 to remedy past intentional discrimination;
and 2 to achieve exposure to widely diverse people, cultures, ideas and viewpoints.
D. Racial Remedies, Affirmative Action in Employment & School Admissions
1. Richmond v. J.A. I Co. (1983): City council adopted regulations that required companies awarded city
construction contracts to subcontract 30% of their business to minority business enterprises. P, which
lost its contract because of the 30% set-aside, brought suit against the city.
a. W/o a showing that a race-based initiative was created to remedy past racial discrimination
and that it supports a compelling governmental interest, the race-based initiative is
unconstitutional and cannot withstand strict-scrutiny.
Plan failed to consider race-neutral measures that would encourage more minority
participation in the construction program.
30% quota not narrowly tailored to any goal, except perhaps outright racial balancing.
b. After Croson: Metro Broadcasting, Inc. v. Federal Communications Commission (1990): SC held
that congressionally approved affirmative action programs only need to meet intermediate
scrutiny.
Adarand Constructors, Inc. v. Pena (1995): 4 justices in majority in Metro resigned. 4 dissenters
from Metro were joined by J. Thomas to make majority.
Racial classifications imposed by govt must be analyzed by a reviewing court under strict
scrutinynarrowly tailored measures that further compelling governmental interests; to
the extent Metro is inconsistent with this, it is overruled
J. Scalia: remedying past discrimination can virtually NEVER meet strict scrutiny.
The Use of Race to Benefit Minorities in College/University Admissions
2. Grutter v. Bollinger (2003): white student applied for admission to law school w/good GPA and lsat
and challenged schools use of race as a factor after rejection.
a. EPC does not prohibit the Law School's narrowly tailored use of race in admissions
decisions to further a compelling interest in obtaining the educational benefits that flow
from a diverse student body.
Bc the Law School conducts highly individualized review of each applicant, no acceptance or
rejection is based automatically on a variable such as race and that this process ensures that all
factors that may contribute to diversity are meaningfully considered alongside race.
3. Gratz v. Bollinger (2003): challenge to schools AA program that ranked each applicant on 150 point
scale w/100 points = admission. If you were a minority or came from a disadvantaged school, +20
points
a. EPC violationconferring points based on applicants race= placing some minority
candidates ahead of nonminorities in admission rankings.
Makes race a decisive factormeans not narrowly tailored enough withstand SS.
Constitutional if race is one factor in an individualized evaluation and only to achieve
the goal of class diversity.
4. Fisher v. University of Texas (2012): Ps (white) sued alleging the school had discriminated against
them on the basis of their race and that the school used race as a factor.
a. Lower court failed to apply SS; per Grutter, University has the burden of evidence to prove
the program was narrowly tailored to obtain the educational benefits of diversity.

VI. Classification Based on Gender

A. Emergence of Intermediate Scrutiny

1. Bradwell v. The State of Illinois (1872): upheld state law prohibiting women from being able to practice
law.
2. Reed v. Reed (1971): first invalidationID law specified the hierarchy of persons to be appointed
administrators of an estate when a person died intestate. If 2 competing applicants in the same
category, male preference.
A classification must be reasonable and not arbitrary and must rest upon some ground of
difference having a fair/substantial relation to the object of the legislation so that all
persons similarly circumstanced shall be treated alike.
Arbitrary = irrational.
3. Frontiero v. Richardson (1973): P, a lieutenant in air force sought a dependents allowance for her
husband. Fed law provided that wives of military automatically became dependents but men couldnt
be unless they depended on their wives for more than of their support.
a. Violates DPCcommands dissimilar treatment for men/women who are similarly situated.
b. Applied Strict Standardgovts interest in administrative convenience did not justify
discriminatory practices.

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c. Admin convenience never gets you over SS, maybe IS.
4. Stanton v. Stanton (1975): Ct declared UT law unconslaw required parents to support their female
children until age 18 but that male children be supported until 21. Statute was based on all notions of
social roles and no longer. Law uncons under ANY test.
5. Craig v. Boren (1976): OK had a statute forbidding the sale of 3.2% beer to males >21 and females >18.
P was between the ages of 18-21 and Whitener was a licensed vendor of 3.2% beer. P brought an action
against an OK official challenging the constitutionality of the statute.
a. Unconstitutionalgender classification
b. Statistics failed to show substantial relationship between law/maintenance of traffic safety.
6. US v. Virginia Military Institute (1996): -US brought suit against VA/VMI alleging that the school's
male-only admissions policy was unconstitutional insofar as it violated the 14th Amendment's equal
protection clause. VA proposed to create a Womens school.
a. Benign justifications offered in defense of absolute exclusions will not be accepted
automatically.
Generalizations about the way women are or what is appropriate for them will no longer serve
to justify denying opportunity to those whose talents and capabilities make them exceptions to
the average description.
Never provided evidence to show that women brought the institution down.
VMI doesnt have to water down its standards, but has to open the way for women that satisfy
the requirements.
When is it Discrimination?
1. Geduldig v. Aiello (1974): CA operated a disability insurance system that supplemented workers
compensationpayments for disabilities not covered by workers compensation. Among those
disabilities not paid for were certain pregnancy related conditions. Suit was brought challenging the
system as an unconstitutional gender-based classification.
a. Under inclusive legislation is appropriate under the Equal Protection Clause, so long as the
line drawn by the State is rationally supportable.
There are conditions not covered by the system that affect both men and women.
The excluded conditions do not affect women alone.
The savings given the program by the exclusion of such conditions benefit both men/women.
That is, inclusion of the excluded conditions would result in lesser amounts of funding for all
other conditions.
Still at IS, though Ginsburg tried to inch it up at VMI
Stereotypes
1. Orr v. Orr (1979): (IS) Petition for divorce. AL courts review financial status of both partners to
determine if husband owes alimony to wife. AL imposed obligations on husbands and not wives to
address economic disparity between men/women by providing for needy women after divorce.
Remedial measure for women suffering.
a. Unconstitutionalstatute not related to its stated purpose.
Gender neutral statute: would have helped needy women. This one can also provide support for
well off women who dont need support & exclude needy men.
2. Michael M. v. Superior Court (1979): Statutory rape law called into question after consensual sex
between 2 parties who are a year apart. Men are punished but women are not, how does govt explain this
kind of regime?
Women are placed at a disproportionate risk of the bad effects of unplanned sex.
Only men can be perpetrators of rape, only women can be victims.
J. Rehnquist: Not similarly situated people
3. Mississippi University for Women v. Hogan (1982): (IS) P is only single-sex college in MS and D was
denied admission into nursing program bc he was a guy.
State fails to advance an important state interest for operating a single sex nursing school.
Women do not lack opportunities to be trained as nurses in MS.
4. Rostker v. Goldberg (1981): Draft card if youre a male/female. Women arent allowed in combat but
the principal of the draft means you can throw anyone in at any time.
Court upholds itgives deference to military however in cases where the mere pretext is
stereotype, we pause.
B. Remedies for Past Discrimination Against Women
1. Califano v. Webster (1977): Insurance benefits calculations changed averaging 3 less years for females
than male resulting in a higher average than males.

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2.

Reiterates the holding of Craig v. Boren: saying that a classification based on gender must serve an
important government interest and be substantially related to achieving that interest.
Citing historical wage gap between men/womenallowing women to eliminate 3 low wage years
from their calculation remedies some part of this discrimination
Nguyen v. Immigration & Naturalization Service (2001): Boy commits crime at 22, sentenced to 6 years
and govt later starts immigration proceedings. Boy was here legally as a permanent resident. When they
wanted to deport him father obtained an order of parentage to halt deportation. Sued because of the
process he had to do prove parentage.
a. Gender classifications benefitting women because of biological differences between
men/women do not violate equal protection clause.
b. Govt objectives: ensuring biological parent-child relationship existseasier to prove between
mother/child.

VII. Equal Protection & Non-Suspect Classes

First, are the 2 classes being treated differently similarly situated?

If so, Equal Protection analysis kicks in
THEN
Do a purpose analysis under Equal Protection before going to level of scrutiny.
Then, once it is apparent that there is a discriminatory purpose (based on text or application of law)
Apply relevant level of scrutiny
A. Underinclusiveraise concern that the govt has enacted a law that targets a particular politically
powerless group or that exempts those with more political clout.
1. Railway Express Agency, Inc. v. New York (1949) P operates about 1,900 delivery trucks in NYC. To
increase revenue, P sold the use of the sides of the truck as advertising billboards to its clients. D
passed a law specifically prohibiting such advertising unless it was connected to the business of the
vehicle.
This classification has a relation to the purpose for which it was made and does not contain the
kind of discrimination against which the Equal Protection Clause of the Constitution protects.
Low level of scrutiny applied.
B. Overinclusivelaw regulates individuals who are not similarly situated; covers more people than it needs
to in order to accomplish its purpose.
1. New York City Transit Authority v. Beazer (1979): P made a rule barring employment of person who
use narcotics and applied the rule to methadone users. Dist ct concluded that there were a lot of
methadone users who were employable and that P could have picked out which ones werent using
normal personnel screening procedures.
a. Assumptions that P bases its decision on are not concerns intended to be protected by EPC.
Ps rule serves general objectives of safety.
Rule not directed against any class of persons characterized by some unpopular traitno
likelihood of bias on the part of the ruling majority.
Court doesnt necessarily disagree with D, but its a matter for local govt.
C. Arbitrary & Unreasonable
1. U.S. Department of Agriculture v. Moreno (1973): Food Stamp Act changes definition of household to
mean related persons living together. Now P who lives with 3 small children and a single mother gets
nothing.
a. Violates due processstatutory classifications of related vs. unrelated persons is irrelevant
to the stated purposes of the Act
To be sustained, it has to rationally further some legitimate govt interest.
Was initially framed to prevent hippies/communes from participating BUT EPC does not allow
a constitutional desire to harm a politically unpopular group under EPC to = a legitimate
governmental interest.
2. City of Cleburne, Texas v. Cleburne Living Center, Inc. (1985): D bought a property from a private
owner with the intention of starting a group home for the mentally retarded. P required D to apply for a
special use permit and was denied the application.
a. There is no rational basis for requiring this particular group home to have a permit when
other similar arrangements are not required to do so.
What level of scrutiny do you apply to the mentally disabled? Use rationality review because
they dont want to presume unconstitutionality in circumstances where the govt will have to treat
them differently to help them.

VIII.

Substantive Due Process: Economic Liberties

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A. Economic Libertiesconstitutional rights concerning the ability to enter into and enforce contracts; to
pursue trade or profession; and to acquire, possess, and convey property.
5th and 15th amendments, respectively, provide neither federal nor state govts can deprive any person
of life, liberty, or property w/o due process of the law. Certain procedures must follow when taking away
someones life, liberty or property.
Procedural due process: what kind of notice and what type of a hearing the govt must provide when
it deprives of LLP.
Substantive due process: whether govt has adequate reason for taking away persons LLP. Focuses on
justification.
1. Lochner v. New York (1905): P who owned bakery was fined $50 for allowing an employee to work
more than 60 hours in a week contrary to law. P appealed his conviction sentence claiming the
labor law was unconstitutionalfree market argument. Sentence was affirmed.
a. Unconstitutionaltheres a right to contract between employers/employees.
Right to buy/sell labor generally protected by 14th amendment against state interference.
Akin to strict scrutiny because its not deferential to legislature.
Lochner ERAbiz reigned freely w/few restrictions.
2. Muller v. Oregon (1908): P, the owner of a laundry business, was convicted of violating OR labor
laws by making a female employee work <10 hours in a single day against law which was put into
place to protect women and their domestic role.
a. Constitutional because women, like minors, are a special class of worker that needs
protection.
Under Modern Day EPC, it would uncons because its not narrowly tailored. Not all women
have kids and stereotyping is not acceptable.
3. Adkins v. Childrens Hospital (1923): P brought suit, claiming that the law violated constitutional
prohibitions preventing interference with freedom of contract, and sought to D from enforcing the
offending provisions.
a. Min wage laws violate freedom of contract. Constitutional guarantees of freedom to
contract are violated by minimum wage laws even when, as here, they seek to protect
classes of citizens traditionally viewed as necessitating greater protections.
Women are in a different position than Mullerthey can vote and Ct rejects the
stereotypes.
Continuation of Lochner thinkingrobust right to contractand with this, women should
be able to choose.
4. Nebbia v. New York (1934): NY legislature established a Milk Control Board that was vested with
the power to fix minimum and maximum retail prices for milk sold within the state. , P, NY owner
of grocery store, was convicted of selling milk for prices in excess of the price set by the Board.
a. Price controls that are arbitrary, discriminatory, or demonstrably irrelevant to the
policies of the legislature, are unconstitutional because they are unnecessary and
unwarranted interferences with individual liberty. They werent in this case.
If it looks like the economy isnt working, its ok for the state to step in. No hard and fast
rule but here the state needs milk.
Court worried about legitimacy if it attempts to block remedies for bad situationsGreat
depression Era & had an obligation to clear the way for a free market to operate.
State free to adopt whatever economic policy may reasonably be deemed to
promote public welfare.
End of Lochnerism
5. West Coast Hotel Co. v. Parrish (1937): P, a chambermaid at the West Coast Hotel, later sued
the hotel in a state court claiming that it had not paid her the law's minimum wages.
a. Minimum wage law was constitutional because it reasonably regulated contracts to
protect the health and welfare of workers.
The min wage law its reasonablegiven the changing social/economic conditions
for govts to set a floor under which wage levels could not drop.
6. Williamson v. Lee Optical of Oklahoma (1955): OK enacted a law that said that you needed a
prescription before an optician could take your old eyeglass lenses and put them in new
frames, or duplicate lost or broken lenses. P violated law.
a. Constitutionalits for the legislature, not the courts to balance the
advantages/disadvantages of the new requirement. Court not getting involved in
substantive due process.

Con Law 10

Court felt it wasnt institutionally competent in analyzing economic issues/interfering

in the protection of employees when the better body to decide these things was state
legislatures.
Economics + economic substantive due process = EXTREME low level review
B. Rebirth of Substantive Due Process: Punitive Damages
1. BMW of North America v. Gore (1996): P bought car that was repaired by manufacturer without
disclosure of said repair.
a. Punitive damages may be imposed to further a States legitimate interests in punishing
unlawful conduct and deterring its repetition.
b. Three point guide
Degree of reprehensibility
Disparity between the harm suffered and the punitive award
Difference between this remedy and civil penalties authorized in comparable cases
2. State Farm Mutual Automobile Insurance Co. v. Campbell (2003): D sued his insurance carrier, they
refused to settle a suit against D, resulting in a jury returning a verdict against D for $185,849 more
than the original parties suing D were willing to settle for.
a. DPC prohibits the imposition of grossly excessive or arbitrary punishments on a
tortfeasora person receive fair notice not only of the conduct that will subject him to
punishment, but also of the severity of the penalty that a state may impose.
The accident was the health & safety issue, not the litigation.
3. Phillip Morris USA v. Williams (2007): The widow of a heavy cigarette smoker, brought a claim for
negligence and deceit against Philip Morris, the manufacturer of Marlboro.
a. DPC forbids a State to use a punitive damages award to punish a defendant for injury that it
inflicts upon nonparties
The widow is a stranger to the litigationunfair to allow as it opens the door to
arbitrariness/no limits

VIV.

Constitutional Protection for Reproductive Autonomy

A. 3 aspects of reproductive autonomy to be fundamental rightsprocreate, purchase & use contraceptives

and the right to abortion.
1. Skinner v. Oklahoma (1942): (SS) Oklahoma's Criminal Sterilization Act allowed the state to sterilize a
person who had been convicted three or more times of crimes "amounting to felonies involving moral
turpitude."
a. Act violates EPC because there was a distinction between white-collared crimes therefore
the law laid an unequal hand on those who committed intrinsically the same quality of
offense.
Procreation requires Strict Scrutiny review.
2. Griswold v. Connecticut (1965): (SS) Ps (clinic director & doctor) found guilty as accessories to
providing illegal contraception. CT law existed against providing or using contraceptives when
marriedaim to discourage extramarital sex.
a. Law violated the right to marital privacy created by the right to family, which is protected
under the 1st, 3rd, 4th and 9th amendments.
The "spirit" of the 1st Am (free speech/right of association), 3rd Am (prohibition on the forced
quartering of troops, weak support), 4th Am (freedom from searches and seizures), 5th Am
(freedom from self-incrimination/right to keep secrets), and 9th Am (other rights), as applied
against the states by the 14th Am, creates a general "right to privacy" that cannot be unduly
infringed.
Because a married couple's use of contraception constitutes a "fundamental" right, CT must
prove to the Court that its law is "compelling" and "absolutely necessary" to overcome that
right (i.e., the "strict scrutiny test"). CT failed to prove this, the law was struck down as applied.
3. Eisenstadt v. Baird (1972): P arrested for distributing contraceptive foam to an unmarried woman
against MA law that banned anyone other than a doctor/pharmacist to distribute contraceptives to
ONLY married couples.
a. The State failed to provide an adequate justification for treating married & unmarried
persons differently, or a legitimate concern for public health, & therefore the statute
violated the EP rights of the very persons Baird asserted the right to aid.
4. Roe v. Wade (1971): (SS) P, TX resident, sought to terminate her pregnancy and brought class action
against state who had law criminalizing abortion.
a. A woman's right to an abortion fell within the right to privacy, recognized in Griswold, is
protected by the 14th Amendment

Con Law 11

The decision gave a woman total autonomy over the pregnancy during the first trimester and
defined different levels of state interest for the second and third trimesters.
As a result, the laws of 46 states were affected by the Court's ruling.
Roe has a right; State has an interest in the health of the mother and the future life.

Womens right

1st
Consent of Doctor
Obtain Abortion
interference

States interest

2nd
Right to life/health
w/o

(Womens right at its

highest)
Health/Safety
Health of the mother
Protecting the woman

5.

State has interest in the

fetus as of the 6th month
(viabilitychild can
survive outside the
womb)

3rd
Right to life or disability
Womans right at its
lowest

States interest in future

child (very high; higher
than woman)
Health of the mother

Planned Parenthood v. Casey (1992): PA passed Abortion Control Actrequired women to give
informed consent & 24-hour waiting period before abortions. Minors seeking abortions also had to get
parental consent except in cases of hardship where the court could waive it. P filed suit arguing the Act
violated Roe.
a. Affirmed Roe and ruled states may regulate abortions so as to protect the health of the
mother & life of the fetus & may outlaw abortions of viable fetuses.
Any regulation that imposes a "substantial obstacle" preventing a woman from obtaining a
legal abortion is an "undue burden" that violates the woman's constitutional right to an
abortion.
The waiting period is not an undue burden = constitutional.
Spousal consent provision = undue burden & uncons.
Parental consent = constitutional.
Due to technology, viability may happen slightly before 3rd trimester.

X. Constitutional Protection for Sexual Orientation & Sexual Activity

A. Sexual Orientation
1. Romer v. Evans (1996): CO passed Amendment 2 via state referendum that banned state/local govts
from adopting measures that would protect gays as a class from discrimination. P (person/govts) filed
arguing that the amendment did nothing more than deny gays special rights. Cities should be able to
decide whom they discriminate against.
a. A bare desire to harm a politically unpopular group cannot = a legitimate governmental
interest.
Amendment 2 singled out gay people imposing on them a broad disability by denying them the
right to seek/receive specific legal protection from discrimination.
It fails under any level of reviewAmendment says you can discriminate on the basis of sexual
orientation. FAILS even rationality review.
A law will be upheld as long as the governments lawyer can identify some conceivable
legitimate purpose regardless of whether that was the govts actual motivation.
Under rationality basis review the actual purpose behind a law is irrelevant/the law must be
upheld if any state of facts reasonably may be conceived to justify its discrimination.
B. Sexual Activity
2. Lawrence v. Texas (2003): Cops called to a disturbance and find 2 men engaged in sexual act. TX has a
Homosexual Conduct Law that bans deviant sexual intercourse w/another individual of the same sex.
a. State laws banning homosexual sodomy are unconstitutional as a violation of the right to
privacyintimate relationships between consenting adults are protected.
Violates DPCsubstantive right to personal liberty in intimate decisions.

Con Law 12

C.

OConnor in concurrence says to use rationality plus reviewbetween rationality/intermediate

scrutiny
Marriage and its Liberties
3. US v. Windsor (2013): Women get married in Canada. Wife dies and widow is federally taxed on her
estate because federal law had not recognized the validity of their marriage under DOMA.
a. Section 3 of DOMA is unconstitutional as its a deprivation of the liberty of the person
protected by 5th Ams EPC.
Uncons because state has sought out to protect this group of marriages and the federal govt
has overstepped its power as the state have the plenary power to determine whos married.
Federal govt is second-guessing states powerpower not left to fed govt is left to the states
marriage, divorce, adoption and family law.

XI. First Amendment, Freedom of Speech, Vagueness/Overbreadth

Speech not protected: Obscenity, child pornography, fighting words

Most highly valuable speech: pure political and religious speech: most protected in public parks/sidewalks
places dedicated for public exchanges.
Most invaluable speech: pornography
Symbolic speech: Acts that are speechex: burning draft card during Vietnam & burning American flag
Speech that encourages illegal conduct: has to include conductex: ban someone from yelling Fire in a crowded
theatre because people will be harmed by the ensued stampede.
A. Vaguenessif a reasonable person cannot tell what speech is prohibited and what is permitted.
Unduly vague law violates DPC whether or not speech is regulated.
1. Coates v. City of Cincinnati (1971): Ps convicted of violating ordinance banning 3+ people to
assemble on any sidewalk and to be engage in annoying conduct. Challenge under 1st Amendment
right to assemble/association
a. Ordinance is unconstitutionally vague bc it subjects the exercise of the right of assembly
to an unascertainable standard, and unconstitutionally broad because it authorizes the
punishment of constitutionally protected conduct.
Vague laws may cause chilling of speechpeople self-censoring because they dont
understand the law.
Reduces the robustness of the speech.
Public squarepublic for a ideal for exchangesidewalk, parks, town square
B. Overbreadth
1. Schad v. Borough of Mount Ephraim (1981): NJ bookstores added coin-operated mechanisms that
permitted a customer to view live nude dancing, complaints were filed that such "entertainment" was
not allowed in that particular zoning code. Rejecting whether live nude dancing, per se, is protected by
1st/14th Amendments, the courts considered solely whether there had been a breach of the zoning
ordinance.
a. The ordinance thus suffers from being overly broad; it bans all live entertainment, violating
the strictures of the Courts overbreadth doctrine.
C. Court Orders as a Prior Restraint
1. Near v. State of Minnesota ex. rel. Olson (1931): MN passed law banning any publication that was
malicious/scandalous/obscene. P published articles that indicated local law enforcement was not
really pursuing the head of the local mob.
a. The government may not censor expression in advance either legislatively or judicially.
To allow a court to enjoin activity w/o providing the publisher an opportunity to show that the
matter is true is a step towards total censorship of the press.
2. Alexander v. United States (1993): P owned adult bookstores in MN and was convicted of
obscenity/RICO charges. Sentenced to jail time, fines, and to give up business.
a. The items seized were done so as a punishment, not a prior restraint. Prior s
D. Court Orders to Protect National Security
1. New York Times Co. v. United States (1971): NYT published top-secret articles during Vietnam war and
USDOJ sought an injunction halting further publication.
a. The govt carries a heavy burden of providing justification for restraining the freedom of
expression, granted by the Constitution. It has not met that burden here.
Clear violation of the 1st Amendmentpress free to publish news
Standard= Govt has capacity to get a prior restraint in circumstances where it can show
a necessity.
Court operates under two paradigms:
Prior restraints are deeply disfavored: newspaper publishing something before info is out.

Con Law 13

E.

Executive Branch holds almost exclusive authority over the conduct of war/espionage.
2. Nebraska Press Association v. Stuart (1976): Crime committedfamily killed. It attracted media
coverage. Defense attorney sought a restraining over for the coverage to deter its prejudicial effect on
jury.
a. While in some circumstances, it may be beneficial to suppress the press when it can be
shown that a criminal defendant will endure irreparable prejudice if publication is allowed,
a Judge who wishes to do so must consider the First Amendment constitutional protections
afforded to the press.
Need to determine whether alternative measures were feasible considering the circumstances
of the caselike jury questionnaires, moving the case to another town, etc.
3. Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton (2002): D passed an ordinance
prohibiting canvassers/solicitors from entering private property in the village w/o a permit. Residents
can fill out a no-solicitors form. Jehovahs began canvassing and didnt seek a permit bc they thought
doing would be an insult to God.
a. Ordinance's provisions making it a misdemeanor to engage in door-to- door advocacy w/o
first registering with the mayor and receiving a permit violate the 1 st Am. as it applies to
religious proselytizing, anonymous political speech, and the distribution of handbills.
The village's interest in preventing fraud could not support the ordinance's application to the
religious organizations, to political campaigns, or to enlisting support for unpopular causes.
The ordinance did not allow for substantial protection of anonymity.
Requiring a permit imposes an objective burden on some speech of citizens holding religious
or patriotic views. They may choose silence over government intervention.
Compelled Speech
1. West Virginia State Board of Education v. Barnette (1943): BofEd required that the flag salute be part of
the program of activities in all public schools. All teachers and pupils were required to honor the Flag;
refusal to salute was treated as "insubordination" and was punishable by expulsion and charges of
delinquency.
a. Compelling a salute to the flag infringes upon an individuals intellect and right to choose
their own beliefs.
Govt must give those who object an OUT
2. Rumsfeld v. Forum For Academic & Institutional Rights, Inc. (2006): The Solomon Amendment, 10
U.S.C. 983(b)(1), withholds some federal funding from colleges and universities that deny U.S. military
recruiters the same access to students that other employers are given. FAIR challenged the law, arguing
that it violated the schools' 1st Am rights to expressive association by requiring them to assist in
military recruitment.
a. The Solomon Amendment regulated conduct, not speech, and was therefore constitutional.

The Solomon Amendment does not require endorsement of the recruiters, and just requiring
their inclusion does not constitute compelled speech in violation of the 1st Amendment.
Case cuts back on the concept that all conduct is speech.
3. McIntyre v. Ohio Elections Commission (1995): P distributed anonymous political information at
several public meetings, expressing her opposition to a proposed tax levy. She was reported in
violation of OH Law, which required her to sign the leaflets. State wanted to protect against fraud/libel.
a. OH code did not have a function integral to the election process, other than the regulation of
speech.
P was engaging in political expression by handing out leaflets = protected by 1 st Am.
The more private the individual is the less likely defamatory speech will be tolerated.

XII. Unconstitutional Conditions on Speech

1.
2.

Speiser v. Randall (1958): CAs refusal to grant to P, a veteran of World War II, a tax exemption because that
person refused to sign a loyalty oath as required by a CA law enacted in 1954. The court reversed a lower
court ruling that the loyalty oath provision did not violate the appellants' First Amendment rights.
Rust v. Sullivan (1991): Health Dept issued regulations limiting the ability of Title X fund recipients to
engage in abortion-related activities. Title X funds were to be used only to support preventive family
planning services.
Brought on by a doctor who believes he has a 1st Am right vs. govt policy that says NO you dont have a
right to discuss this.
a. The govt can selectively fund programs w/o violating the Constitution, if it believes the funded
programs encourage certain activities it believes are in the public interest.
The regulations do not require recipients to forfeit rights. Instead, they mandate that the activities
be kept separate & distinct from the funded program.

Con Law 14

3.

Govt has not said to the doctor that he cannot advocate for abortionshe can do so when not
working at the clinic. He can protest at night or elsewhere.
Legal Services Corp v. Velazquez (2001): Respondents were employed by a grantee of appellant nonprofit
legal services corporation. The lower court found that the restriction in the Omnibus Consolidated
Rescissions and Appropriations Act of 1996, which limited the arguments respondents were allowed to
make on behalf of indigent welfare clients, was an impermissible viewpoint-based discrimination
under U.S. Constitutional Amendment.
a. Legal Services Act facilitated private speech, rather than promoted a governmental message,
because attorneys who were funded by the program, such as respondents, spoke on behalf of
their clients in pursuing welfare claims.
Congress had impermissibly restricted that speech by designing a subsidy to limit the arguments
that respondents were allowed to make before the judicial branch.
Congress had attempted to insulate its own laws from legitimate judicial challenge by defining the
scope of the litigation it funded to exclude certain vital theories and ideas.
Such a restriction violated the First Amendment and was inconsistent with the accepted separation
of powers principle

XIII. Unprotected Speech: Incitement of Illegal Activity

1.

2.

3.

4.
5.

Schenck v. United States (1919): P mailed circulars to draftees. The circulars suggested that the draft was a
monstrous wrong motivated by the capitalist system but advised only peaceful action such as petitioning to
repeal the Conscription Act. P was charged with conspiracy to violate the Espionage Act by attempting to
cause insubordination in the military and to obstruct recruitment.
a. Ps speech not protected in this situationThe question in every case is whether the words used are
used in such circumstances and are of such a nature as to create a clear and present danger that they
will bring about the substantive evils that Congress has a right to prevent." D
During wartime, utterances tolerable in peacetime can be punished.
Frohwerk v. United States (1919): Newspaper published in Missouri, issued a series of 12 editorials written
by P denouncing involvement by the United States in World War I. P was charged with violating the
Espionage Act of 1917, which made it a crime to "willfully cause or attempt to cause insubordination,
disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States."
a. Court reasserted its conclusion in Schenck v. United States (1919) that the First Amendment
does not "give immunity for every possible use of language."
After noting that the federal govt has a valid interest in protecting the recruitment of members of
the armed forces, and that in publishing the articles, P engaged in such a conspiracy, the Court
concluded that P's conviction was legal.
The Court dismissed the argument that P's intention was never to obstruct recruitment, noting that
"conspiracy to obstruct recruiting would be criminal even if no means were agreed upon
specifically by which to accomplish the intent."
Debs v. United States (1919): P gave a number of public speeches in OH opposing the war. The theme of his
speeches was the benefits of a Socialist society. He focused on the indictments of his comrades for helping
others evade the draft and the ill effects of war.
a. Speech is not protected if one purpose of the speech, incidental or not, is to oppose war efforts.
The decision is based on the analysis of the likelihood or imminence of harm caused by the speech.
Although there appears to be very little evidence of either here, the Supreme Court believed the
danger was very real.
Abrams v. United States (1919): Speech is not constitutionally protected when the words used under the
circumstances present a clear and present danger of bringing about an evil Congress has a right to
prevent.
Gitlow v. New York (1922): P, a socialist, was arrested for distributing copies of a "left-wing manifesto" that
called for the establishment of socialism through strikes and class action of any form. Convicted under a
state criminal anarchy law, which punished advocating the overthrow of the government by force. P argued
that since there was no resulting action flowing from the manifesto's publication, the statute penalized
utterances w/o propensity to incitement of concrete action.
a. On the merits, a state may forbid both speech and publication if they have a tendency to result
in action dangerous to public security, even though such utterances create no clear and present
danger.
The rationale of the majority has sometimes been called the "dangerous tendency" test.
The legislature may decide that an entire class of speech is so dangerous that it should be
prohibited.

Con Law 15

Those legislative decisions will be upheld if not unreasonable, and the defendant will be punished
even if her speech created no danger at all.
6. Dennis v. United States (1951): D and other Communist leaders were convicted for violation of the Smith
Act, which is directed at conspiracy to teach or advocate the overthrow of the government by force or
violence.
a. The Smith Act doesnt violate 1st amendmentserves a substantial enough government interest
and the CPL is highly organized, disciplined, inflammable, group with history of uprisings in
other countries, presented a clear and present danger.
Plurality introduces the Hand test, and is an elaboration of the clear and present danger test but
the fifth vote, the Frankfuter test becomes the law of the land.
Frankfuter test reasonableness, more latitude.
7. Brandenburg v. Ohio (1969): P, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later
convicted under OH criminal syndicalism law. The law made illegal advocating "crime, sabotage, violence,
or unlawful methods of terrorism as a means of accomplishing industrial or political reform," + "with any
society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.
a. Uncons: Govt. may not step in except where such advocacy is directed to inciting or producing
imminent lawless action and is likely to produce or incite such action.
The Court used a two-pronged test to evaluate speech acts:
1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and
2) it is "likely to incite or produce such action."
The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring
whether or not that advocacy and teaching would actually incite imminent lawless action. Overly
broad
A. Fighting Words and Hostile Audiences
1. Chaplinsky v. New Hampshire (1942): P a Jehovah's Witness, called a city marshal a "God-damned
racketeer" and "a damned fascist" in a public place. He was arrested and convicted under a state law for
violating a breach of the peace.
a. Some forms of expression--among them obscenity and fighting words--do not convey ideas
and thus are not subject to First Amendment protection.
In this case, P uttered fighting words, i.e., words that "inflict injury or tend to incite an
immediate breach of the peace."
Fighting words now mean that you are in a situation provoking a violent response, just
with your words, you can be arrested for having provoked that violent response.
2. R.A.V. v. City of St. Paul, MN. (1992): Teenagers allegedly burned a cross on a black family's lawn. The
police charged one of the teens under a local bias motivated criminal ordinance, which prohibits the
display of a symbol, which "arouses anger, alarm or resentment in others on the basis of race, color,
creed, religion or gender."
a. The ordinance invalid on its face because "it prohibits otherwise permitted speech solely on
the basis of the subjects the speech addresses."
Just because it applies to fighting words doesnt mean it works.
This ordinance is a content-based restrictionspecific imagesyou cant pass a law that
targets and carves out particular images that are particularly unprotected. Content-based
regulation is definitely not likely to be constitutional.
Treat as its own insular case
3. Feiner v. New York (1951): White student made speech on street corner, shoving ensued, was asked 2x
to end speech, he didnt. Cops arrested him for inciting a breach of peace.
a. Ps arrest was a valid exercise of "the interest of the community in maintaining peace and
order on its streets."
Court applied clear/present danger test.
Dismissed the notion that arrest = suppression of free communication
4. Virginia v. Black (2003): Ps were convicted separately of violating a VA statute that makes it a felony
"for any personwith the intent of intimidating any person or group to burn...a cross on the property
of another, a highway or other public place," and specifies that "any such burning...shall be prima facie
evidence of an intent to intimidate a person or group."
a. While a State, consistent with 1st Am., may ban cross burning carried out w/ the intent to
intimidate, the provision in VA statute treating ANY cross burning as prima facie evidence of
intent to intimidate renders the statute unconstitutional in its current form.
Ok to criminalize acts that intend to intimidateburning a cross with an intent to intimidate
whoever is in the house = unconstitutional ok to designate in law.

Con Law 16

What state cant do is say that the speech by itself = intent to intimidate: cross burning =
intimidation
B. Conduct that Communicates (Symbolic Speech.. Gets IS)
1. United States v. OBrien (1968): P burned his draft card at courthouse in opposition to war. Convicted
under fed law that banned mutilation of draft cards.
a. A govt regulation is sufficiently justified if it is w/in the constitutional power of the Govt; if it
furthers an important or substantial governmental interest; if the governmental interest is
unrelated to the suppression of free expression; and if its an incidental restriction on
alleged 1st Amendment
If the conduct is separable from the speech, you can ban the conduct.
2. Texas v. Johnson (1989): P burned an American flag as a means of protest against Reagan
administration policies and was tried and convicted under TX law outlawing flag desecration.
a. Burning of flag = protected expression under 1st Amendment.
Expressive conduct of distinct political nature.
State officials did not have the authority to designate symbols to be used to communicate only
limited sets of messages, noting that if there is a bedrock principle underlying the 1 st
Amendment, it is that the Govt may not prohibit the expression of an idea simply because
society finds the idea itself offensive or disagreeable." Govt interest is insufficient.
The case should have gone differently under OBrien