Constitutional Law II Zietlow Outline Villanueva

1 Con Law II Zietlow Spring 2016 - C.
Villanueva
Sources of 14th Amendment, 1st Amendment.

Individual Rights
14th Amendment No state shall deny to any person within its juris the EP of the laws.
1st Amendment Congress shall make no law respecting an establishment of religion,

or prohibiting the free exercise thereof, or abridging the freedom of
speech, or of the press.
Evaluating 1. Ask what is the scope of the right.

restrictions on 2. Does the government unduly intrude on that right?
Individual Rights 3. What is the government interest?
4. Conclusion: decide if the regulation is valid.
STATE The constitution only protects against gov interference, not private
interference.
ACTION
DOCTRINE
Federalism States have general police power.
Civil Rights Cases Civil Rights act of 1875 prohibited discrim on basis of race in
privately owned public accommodations, but was later
struck down.
14th Am doesnt apply to private action and Congress has no
power to regulate it.
Civil Rights Cases State action is required because of the need to limit the
Rationale power of the fed gov and need to protect individual liberty &
autonomy.
14th Am doesnt authorize Cong to create a code of municipal
law for the reg of private rights.
Cant step into the domain of local jurisprudence and law
down rules of conduct for individuals.
States, not the fed gov, regulate individual actions.
VAWA Created by fed law as giving a remedy victims of DV. Was

enacted under the Commerce Clause, because of the civil
rights cases the fed gov could not enact otherwise.
Target example Someone works at Target, has Rand Paul for Prez button, Target
can fire because private actor.
City of Toledo Same situation as target, but EE works for gov and wears button.
Mayor says take it off or be fired. The EE can file a lawsuit because
state actor.
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2 Con Law II Zietlow Spring 2016 - C. Villanueva
Charter School Owned by private entity, but gets $ from state and regulated by
state. If EE wears button, more complicated and not clear if state
or private actor.
In favor of regulation: public function, state $$ (but not enough,
have to look at what the funds are used for). Conclusion: unclear.
State fails to i.e. police dont show up when apartment is burglarized, or woman
prosecute with PPO says state didnt prevent husband from taking and killing
kids.
This is not covered. State inaction is not state action.
Two Exceptions 1. Public Function Test: Private actor performs a state function.
to when a private 2. Entanglement: When the state authorized or encouraged the
private action.
actor is also a state
i. Relationship b/w private party & state;
actor.
ii. Causation (was the gov the prox cause?)
Privately Owned Marsh v. 1st and 14th Am protections of speech & religion still apply to
Town Alabama individuals when operating a privately owned town, if the
(open to the public) town is open to the public and used for public purposes.
Public
Town & shopping district were accessible & freely used by
function
public, nothing to distinguish them from other towns other
than that the property was privately owned.
Walks like a duck test. Looks like a town, so its a town.
Privately Owned Jackson v. Privately owned utility licensed & regulated by the state and
Utility Metro was a monopoly, is still not a state actor even though it
Edison provides an essential public service.
The state does not traditionally provide electricity.
Public
function Slippery slope: would apply to docs, groceries, any regulated
biz.
State action A private entity is only treated as state action if there is a

w/ private sufficiently close nexus between the state & the challenged
entity action, so that the action may be fairly attributed to the state.
Traditionally i.e. Police, fire, tax collection, company town, primary

exclusively elections, city parks.
function of the Stringent test and hard to meet.
state Entanglement cases are more in the middle, have less clear
line.
Primary Terry v. Jaybird party was created to have primaries, didnt allow
Elections Adams AAs to vote, was intended to circumvent 15th Am & to get
candidates who would later run in general election.
Public
Unconstitutional under state action. Running elections is
Function
trad a gov function.
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City Parks Evans v. Senator in GA left lad in will to private trustee as a park only
Newton for white people, was open to the public & maintained by city
resources.
Park is a state actor bc/ its predominant character is
municipal.
Entanglement 2 types 1. Significant state involvement;

2. State authorization or encouragement.
Racially Shelly v. Property governed by racially discriminatory covenant,

Discriminatory Kraemer owner wanted to sell to black buyer.
Covenants State court enforcement = state action via judicial action.
Could theoretically be broadly applied to almost all private
agreements, but case has not been interpreted this way.
2 STEP TEST Lugar Joint participation means fairly attributable to the state for
for joint entanglement.
participation 1. Deprivation is caused by exercise of some right or privilege
created by the state, or a rule of conduct imposed by the
state or by a person for whom the state is responsible for.
2. The party charged with deprivation must be a person who
can fairly be said to be a state actor.
Auth not Authorization alone is not enough. Causation is key, who

enough caused the injury?
i.e. Flagg Brothers, UCC state said they could sell warehouse
contents, but private party sold on its own so no joint
participation.
Jury Selection Edmonson Private litigants cannot exercise their peremptory challenges
v. Leesville in a racially discriminatory manner.
This is discrimination aided by overt, significant assistance
of state officials (judge participation).
Possible to also argue public function b/c courts are
traditionally & exclusively domain of the state.
Symbiotic Burton v. Coffee shop was state actor b/c symbiotic relationship or
Relationship Wilmingto mutual interdependence. Shop provides revenue for garage,
n Parking which gives parking for shop.
Auth
Private Coffee When coffee shop refused to serve AA man, 14th prohibition
Shop in State on race still held. Solution: put nondiscriminatory provision
Owned Garage in lease.
After this case, court never found another symbiotic
relationship again.
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Licensing & If a state does not significantly involve itself with invidious
Regulation discrimination by a private entity, no state action nor 14th
Am violation.
Moose Lodge i.e. private club has state liquor license, refuses to serve AAs.
Not Serving AAs Liquor auth plays no part in est / enforcing guest policies.
(Causation reqmt, could not be attributed to state).
Rule: Licensing & regulation is not enough. Monopolistic
nature of license is not enough.
Government Norwood v. A state cant grant financial aid if it has a significant tendency
Funding Harrison to facilitate, reinforce, and support private discrimination.
(when its i.e. State purchases & loans textbooks to racially
state action) discriminatory private schools.
Court said that textbooks are like state tuition grants.
Government Funding alone is not enough. State has to use coercive

Funding power or significant encouragement.
(when its not Also not enough: mere approval, mere acquiescence,
state action) licensing.
i.e. Private school for special needs students, teachers fired
without DP. State funded up to 99% of schools operations,
but not enough. (pushed back on Norwood)
STATE Hand out Public function

ACTION Entanglement
EXCEPTIONS
Public Function Hand out Theory: private actor performs a state function.
Rule: applies when a private actor performs a function
that is traditionally exclusively reserve to the state.
Applications:
o Does apply to company town, city park, fire and
police protection, tax collection.
o Does not apply to malls, public utilities.
Entanglement Hand out Theory: state and private actor is entwined.

o Rule: state uses its coercive power to require the
act that injures P or significantly encourages that
act.
o Close Nexus.
Shelly v. Kramer- court enforcement.
o Court intervenes in private contract to enforce
discriminatory restrictive covenant.
o State attachment proceedings when state actor
participates. (sheriff serving writ of attachment)
o Peremptory challenges.
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Significant state involvement Coercive power or

Close Nexus.
o YES: Brentwood Academy- state and private
actor are entwined.
o NO: Moose Lodge- licensing is not enough.
o NO: Rendell-Baker- Funding and regulation is
not enough.
Look at causation. Not enough that the state was a but for
cause, also must have a coercive power, significant
encouragement (positive act) or close nexus.
New exception: handout Brentwood Academy: An action taken by a private

Entwinement regulatory association within a state that is composed
of public school members and governed by public
school administrators constitutes state action for
purposes of the Fourteenth Amendment because the
state is sufficiently entwined with the private
association.
This exception is limited.
EQUAL RB (must be rationally related to a legitimate gov interest):

applies to economic classifications, sexual orientation,
PROTECTION disability, age, poverty.
Classifications IS: (substantially related to an important or exceedingly
persuasive gov interest)- Gender.
SS: Race and ethnicity, alienage (if states are classifying
based on alienage).
Reasons for Intent of the framers

Heightened Scrutiny Immutable characteristic
History of discrimination
Political disenfranchisement.
RATIONAL BASIS Test: Rationally related to a legitimate gov purpose.

(note: invidious discrimination is not a legitimate
(baseline) purpose, i.e. Moreno, Cleburne, Romer).
Applies to classifications based on: economics
(including poverty), age, disability, sexual orientation,
some alienage
INTERMEDIATE Test: substantially related to an important (or

SCRUTINY execeedingly persuasive) justification.
Applies to: classifications based on gender.
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STRICT SCRUTINY Test: narrowly tailored to achieve a compelling gov

purpose.
Applies to all classifications based on race, nat origin,
some alienage (i.e. states classifies);
Affirmative action based on race: court applies SS.
o Compelling interest? Remedying actors own
past discrimination, diversity in education.
o Narrowly tailored? Race must not be the decisive
factor; preference for economically
disadvantaged is okay.
EQUAL No state shall deny to any person within its juris

the EP of the laws.
PROTECTION Fairness: doesnt mean state should treat every person
the same. Means similarly situated ppl will be treated
the same, freedom from arbitrary distinctions.
Reasonableness: govs treatment is reasonable.
Hypos: Does it No position shall be filled by a Yes, facial discrimination.

trigger EP? woman.
No position filled by a person Maybe. Discriminatory impact,
weighing less than 175 lbs. reqs proof that there is no
discriminatory purpose.
High school diploma reqed. Unclear. Could have disparate
impact but need more facts. What
is rationale for reqmt?
All positions filled by a lottery. Would omit the most qualified
applicants, concern over
arbitrariness.
Hire all persons that apply. Maybe violation, have to look at
purpose, same probs as lottery.
EP Analysis 1. What is the classification?
2. What level of scrutiny should be applied?
3. What is the gov purpose? (reason for reqmt)
4. Does the purpose justify the classification?
Rationale Basis Rule: Categorization in the law will be upheld if it is rat

Review related to a legit gov purpose, challenger has burden of
proof.
Court is deferential to legis, rarely are laws found
unconst under this test.
Policy: legis is elected (unlike judges) & judicial
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economy (dont have the crt second guess everything

legis does). Assumption that political process works.
Applies to any classification that doesnt trigger
heightened scrutiny.
Gov Purpose Any conceivable purpose is enough. i.e. preserve

under RB historic district, safety, public health, morals.
Gov cant be motivated by prejudice (i.e. Romer,
animosity towards a specific group.
Amendment to Romer v. CO amended state constitution and prohibited legis,

State Evans exec or judicial action from outlawing discrimination on
Constitution the basis of sexual orientation.
Law was overly broad, lacked rat relationship & raised
inference of animosity. Bare desire to harm a politically
unpopular group.
Amendment to RR Amendment to RR Retirement Act, ended dual benefits

RR Retirement Retirement & grandfathered in some recipients. So complicated
Act v. Fritz
that Congress probably didnt know what they were
voting on, some people would lose out.
As long as Congress could conclude EEs in biz would
overall be better off, met RB for legit gov purpose.
Under Railway Fit doesnt need to be perfect to achieve the goal. Law
Inclusiveness Express can be over or under inclusive, b/c deference to legis.
using RB Agency v.
NY Ok to have piecemeal approach. State law that is
substantially underinclusive doesnt violate EP b/c state
may rationally address public problem in phases.
o i.e. ordinance in NY prohibits advertising on city streets,
except ppl who use cars that advertise own business.
Purpose was to reduce distractions, permissible even
though under-inclusive.
Over NYTA v. State reg that is over-inclusive b/c reg a general class of
Inclusiveness Beazer persons based on conduct of particular members,
using RB doesnt violate EP if rationally related to legit state
purpose.
o i.e. NYTA refused to hire methadone users. Some not
employable, but others were ok since studies showed 75%
success of getting off heroin after 1 year. State purpose to
hire good EEs was legit, no EP violation.
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Preventing US Dept Fed food stamp reg denied benefits to households

Fraud w/ Food Agriculture containing unrelated members, purpose was to prevent
Stamps v. Moreno
fraud & hippies from participating.
Classification was not reasonably related to prevent
fraud, bare desire to harm a politically unpopular
group.
Result was that it denied assistance to people unable to live
independently. Didnt show it prevented fraud, other provisions
such as criminal penalties for fraud already.
Most likely used RBWB.
EP and City of Ppl w/ disabilities have different needs, doesnt

Mentally Cleburne warrant a higher standard of scrutiny.
Disabled Reasons for higher scrutiny would be 1. History of
discrim, 2. Immutable characteristic, 3. Political
disenfranchisement.
o i.e. City denied special use permit for home for disabled,
other groups such as hospitals didnt need permit.
Ultimately failed RB b/c based on irrational prejudice, not
rationally related to legit purpose.
Reasons for Immutable characteristic;

Heightened Lack of access to political process;
Scrutiny History of discrim;
Race (History behind 14th Am).
Dredd Scott The reason why we have heightened scrutiny. Was b/f
13th Am (no slaves) and 14th Am (gave EP), said
Congress couldnt abolish slaves b/c constitutional
right, and AAs not intended to be citizens.
Examples of Court will scrutinize legis more closely if it:

Heightened Violates specific const prohibition, fundamental right;
Scrutiny Restricts political processes;
Reflects prejudice against discrete & insular
minorities.
Korematsu Legal restrictions which curtail civil rights of a racial

group are suspect & subject to SS. Have to justify w/
public necessity & not racial antagonism.
Not automatically unconstitutional, i.e. pressing public
necessity may sometimes justify.
i.e. Jap excluded from area in CA and sent to camp in Utah, both
over-inclusive (deprived rights of those not a threat) &
underinclusive (didnt apply to other races who were disloyal).
Court believed classification not based on racial antagonism, but
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urgent need for security during war.
Korematsu Dissent said reasons based largely on misinformation,

Dissent insinuations by ppl w/ racial prejudice.
Rules for Crt always uses SS, has to be necessary to achieve a

RACE BASED compelling gov interest.
Classifications Gov has burden to show necessary, whereas w/ RB P
has burden to show purpose wasnt legitimate. (RB: P
almost always loses, whereas SS: P wins.)
If classification based on race, have to show facially
discriminatory / discriminatory intent.
OK to remedy ones own discrimination, but not societal
discrim as a whole.
Restrictions Loving v. Restricting freedom to marry solely b/c of racial

to Marry VA classifications violates the central meaning of EP clause.
based on i.e. VA didnt allow marriages between AAs & whites or other
Race minorities, and purpose was to preserve racial integrity. Court
said mere equal application not enough, was designed to maintain
White Supremacy (impermissible).
Restrictions Palmore v. The reality of private biases & possible injury they
b/c of Private Sidoni might inflict are impermissible considerations for
Biases removing child from custody of natural mother.
Constitution cant control prejudices, but also cant
tolerate them. The law cannot directly or indirectly
give effect to private biases.
i.e. Caucasian couple divorced, mom married AA, court
impermissibly gave custody to dad b/c daughter would suffer
social stigmatization.
1st Separate Plessy v. Originally, court said that laws that separated races was
but Equal Ferguson a valid police power & didnt imply inferiority of either
Case race.
Gov was essentially proscribing acceptable conduct
based on racial distinctions. If there is social prejudice,
law cannot give its stamp of approval & perpetuate
those biases.
i.e. Separate railway cars for blks & whites was constitutional,
court said social prejudices couldnt be overcome by legis.
Plessy Harlan said constitution is color blind.

Dissent Gov cant draw lines based on race, nor can it make a
caste system.
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Separate but No law school for AAs in MO. Instead of admitting AAs,
Equal law MO created new law school for AAs within state
school (violated EP to send out of state.). Missouri ex rel Gaines
Later, separate law school found inherently unequal b/c
of intangible differences: reputation of faculty, school,
position & prestige of alumni. Sweatt v. Painter 1950
Rejection of Brown v. Even if tangible factors are equal, still deprives minority
Plessy Bd of Edu. children of equal educational opportunities.
Court said now there is more psychological knowledge
on the effects of segregation in schools. Creates feeling
of inferiority that affects hearts & minds in a way
unlikely to be undone.
Sense of inferiority affects motivation of child to learn,
deprives them of benefits they would receive in
integrated school.
Segregating Public respect for justice system is undermined when

Prisoners the system discriminates based on race. SS applies.
i.e. CA had policy of segregating new prisoners for 60 days to
prevent gang violence (gov purpose). Wasnt narrowly tailored:
could have looked at prisoner records, but classified by race b/c
cheaper. Court said perpetuated racial stereotypes & violence.
Intentional Rule Discrimination Type

Discrimination No pet owners allowed to enter On its face, this is facial
house, b/c I am allergic and dont discrimination.
Hypos want ppl w/ pet fur on them.
No one with animal hair on their Not intentional discrimination
clothes allowed, b/c I am allergic. against pet owners, but has
discriminatory impact.
Pet owners are a discriminated They must show I did this b/c I dont
class & want to bring suit. like pet owners, and this was my
sneaky way of getting around it.
Disparate Impact WA v Davis Doesnt violate EP if a law disproportionately affects
standing alone one race more than another. Standing alone, doesnt
warrant SS.
Also have to show discriminatory purpose i.e. hiring
practices.
i.e. More blacks than whites disproportionately failed DC police
exam. Was looking for EEs who could communicate well orally &
in writing. Failed to show purpose to discriminate, test was
neutral on its face & rat related to a lawful gov purpose.
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Reason for If a court could invalidate a statute simply b/c it

Reqing Intent to disproportionately impacted one race more than
Discriminate another, tons of laws invalidated.
Lots of inequality out there, slippery slope.
Capital McCleskey Individual P has to show he was discriminated,

Punishment v. Kemp inference of purposeful discrimination b/c of statistics
is insufficient to prove discriminatory intent.
State legis must act because of, not in spite of its adverse
effects upon an identifiable group.
Foreseeability of discriminatory results is not enough.
Gov must have intended the discriminatory result.
i.e. Capital punishment statute resulted in AAs who killed white victim 4.3
times more likely to get death penalty. Argument that legis adopted cap
punishment to discriminate failed. P had committed an offense for which
the death penalty could be lawfully sentenced.
Voting at City of Discriminatory motivation is a necessary ingredient,

Large case Mobile v. evid of past discrimination is not enough to condemn
Bolden
gov action that itself is not unlawful.
i.e. City of Mobile had system where 3 commissioners voted by
majority at large, 35% of pop black but no blacks ever voted in.
Past history of race discrimination & commissioners who
discriminated was not enough.
Closing of Still have to show intent and impact to find EP violation

Desegregated based on race.
Pools i.e. Jackson, MS ordered to de-segregate public parks and pools, so
the city closed all pools. Said it was expensive & risky to operate
desegregated pools, but impact was same for both blks & whites.
Statistics to Generally, statistics to show intent are not enough (only

Show Intent exception: inexorable zero.)
Inexorable Zero to show discriminatory intent: Facially
neutral law w/ discriminatory application violates EP.
i.e. No laundry in wood building w/o permit, but every single Asian
applicant is denied & every white applicant granted. Yick Wo
i.e. All but 4 of 400 black votes excluded from city limits when city
lines were redrawn. Gomillion.
Discriminato Arlington Discrimination must be a motivating factor, doesnt

ry Impact via Heights have to be the only reason but must be the main reason.
Zoning Ord. Impact is relevant evid that P can present, just not
enough.
To prove, look at 1. Departures from normal procedure,
2. Legis history; 3. Decision-maker testimony.
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i.e. Zoning variance request for multi fam homes for low income
housing denied. P claimed discrimination, but impact was not
enough & failed to show purpose.
Process to Process can be relevant. i.e. literary tests to vote. Made

show Discrim whites read alphabet, blks had to read Shakespeare.
Purpose
BoP: Racial Once racial discrimination is shown to have been
Discrim. substantial or motivating factor behind enactment of a
law, burden shifts to gov to demonstrate that law would
have been enacted w/o this factor.
Discrim. Hypo To prove discrim. intent

Hypos State disenfranchises felons: racial To see if EP violation, see when
disparities, so has passed and legis history.
disproportionate impact.
Crack cocaine higher penalty than Again would have to look at evid of
powder cocaine. Has disprop discrim intent. Congress addressed &
impact, higher % of AA convicted changed to equalize.
of crack.
Must show adopted b/c of, not in spite of.
Remedies Brown II Huge issue w/ EP violations, complicated & very

for EP violations difficult. Remedy has to be proportional to the
violation.
With desegregated schools, states had affirmative duty
to take steps to convert to a unitary system, more
than a negative right. States had affirmative duty to
send black kids to united school
Affirmative Swann v. 1. Race neutral plans may be inadequate to remedy past

Duties to Charlotte discrimination.
Desegregate 2. Constitutional violation stems from purposeful
discrimination (i.e. history).
3. Remedy is limited to the constitutional violation.
4. Judicial intervention should cease when school district
achieves unitary status.
i.e. Dis. Crt ordered racial assignments across neighborhoods,
and busing to facilitate those assignments. Objective was to
dismantle a segregated school system.
Inter-District Milliken v. If there is no evid that surrounding school districts

Desegregation Bradley promote segregation, cant remedy segregation in a city
by imposing desegregation procedures on the city & all
surrounding districts.
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Constitutional violation in one district must produce a

significant segregative effect in another district.
i.e. Detroit wanted to req busing kids from suburbs into inter-city
Detroit, SC said remedy has to fit the violation.
Dissolving OK City v. A decree to remedy past discrimination in public

Desegregation Dowell schools may be constitutional dissolved upon a showing
Decree the school has achieved unitary status.
Decree should be resolved after local authorities have
acted in compliance with it for a reasonable period of
time.
Mechanical Mechanical categorization based on race is not

Categorization narrowly tailored / least restrictive means to achieve a
compelling state interest.
Race conscious remedies are okay, can even have what
looks like a quota, but must be tied to discriminatory
intent and case-by-case basis.
Scrutiny for Parents SS is used when gov gives benefits or burdens based on
Racial Involved v. individual race classifications.
Seattle
Classifications School districts must show the racial classifications in
the assignment plans are narrowly tailored to achieve a
compelling state interest.
i.e. Seattle had no finding of past discrim, but were concerned about racial
concentrations. Race was factor in student assignment.
Louisville had history of segregation, but had decree dissolved after
finding unitary status achieved.
Compelling Unless you are remedying your own race

Interest discrimination, will never be narrowly tailored or
for racial satisfy EP.
classifications Interest in diversity for higher education is compelling
interest, but has to use race as criteria- not mechanical
classification.
i.e. Seattle w/ no history of segregation, Louisville which had
achieved unitary status.
Racial Quotas Bakke Affirmative action cannot be justified with the goal of
to remedy remedying societal discrimination.
societal However, race or ethnic background may be deemed a
discrim plus that tips the balance.
Hard quota is not narrowly tailored. SS applies.
i.e. Med school reserved 16 of 100 spots for minorities to remedy
societal discrimination & serve communities. Court rejected their
reasons.
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Discrim w/ Classifications to help minorities and remedy

Benign discrimination still subject to SS. Still using race to
Purpose classify.
Any racial classification excludes someone, punishes
ppl who are innocent victims & never discriminated.
Remedying Richmond Remedying societal discrimination is not a compelling

societal v. JA gov interest.
Croson
discrim: SS applies, gov must look at race-neutral alternatives to
interest make sure narrowly tailored.
i.e. City adopted plan to award K to minority contractors. No
specific instances of past discrimination. Having just a general
assertion that there has been past discrimination in a particular
industry doesnt justify the use of a unyielding quota.
Affirmative Grutter v. Race or ethnic background may be deemed a plus that

Action in Bollinger tips the balance. (Harvard plan).
Higher Edu. School can have a compelling interest in student body
diversity.
Admissions can consider race & be narrowly tailored if
no rigid quota.
i.e. U of M law took race into account with other variables, inc.
recommendations, quality of essay, etc. Crt gave deference to
university, which is not usually given in SS.
Race giving Gratz v. If admissions gives automatic 20 points, makes the

Bollinger
automatic factor of race decisive and is not narrowly tailored
points (even though diversity is still compelling state int).
i.e. U of M undergrad admissions used index with 150 pts total,
racial minorities got 20 pts (well more than any other factor.)
GENDER BASED IS applies.

Classifications Law must be substantially related to an important gov
interest (exceedingly persuasive language is also
used.)
Substantially related = doesnt have to be necessary like
SS, but has to have a fit between the means used to
achieve the purpose.
Classifications Frontiero Cannot have classification based on outdated notions &

based on romantic paternalism.
Gender Mere administrative convenience is not enough.
Stereotypes i.e. Statute that said servicemen could claim wife as dependent &
automatically get benefits, but servicewoman would have to show
evid that husband was dependent. Frontiero.
i.e. Mandatory preference to males over females to appoint estate
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administrators. Avoiding intrafamily controversy was not rational

state interest to justify classification. Reed.
i.e. Statute forbid sale of beer to males under 21, females under 18.
Craig v. Boren.
Defending US v. VA Parties who seek to defend gender based gov action

Gender Based must demonstrate an exceedingly persuasive
Classification justification for that action.
i.e. VMI ran public school that used adversative method, only
accepted men. Argued would need to change teaching methods if
accepted women, but crt said not persuasive. Based on stereotypes
of women, who still need to be given the opportunity if so desired,
and was EP violation.
To uphold sex Court will uphold a sex classification if it is to

classification compensate for past discrimination & isnt based on
stereotypes. Compensatory policies are ok.
Classification Geduldig OK to compensate for past discrim, & ok if based on real

based on real differences.
differences w/ Not okay to perpetuate gender stereotypes (i.e. notions
genders of gender roles in families, assume neediness of wives /
mothers).
i.e. CA program paid disability insurance to workers fully funded
by wage exactions. Crt said it was a pregnant v. nonpregnant class
distinction, to save money. If pregnancy included, not feasible.
Law that reqs Gender cannot serve as a proxy for need based on
only H pays sexual stereotypes.
alimony i.e. AL law reqed H, but not W, to pay alimony on divorce. There
were hearings already held to determine need, so law wasnt
actually necessary. Cant assume W plays dependent role.
Denial of Men MUW v. State tried to say purpose was benign to make up for
in Nursing Hogan job discrim against women in past, crt said really to
School perpetuate stereotype that nursing is a womans job &
EP violation.
i.e. P was male, wanted nursing degree, denied from public univ for
women. State nursing school failed to show an exceedingly
persuasive justification, means was not substantially related b/c
men already attend continuing ed classes.
Statutory Rape Michael M. If statute penalizes males, but not females, who have
Law v. Sonoma sex with minor of opposite gender, preventing teenage
pregnancy satisfies important gov int.
Substantially related b/c only girls have capacity to get
pregnant.
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Military Draft Rostker v. If only men have to register for draft, exclusion of
Goldberg women is substantially related b/c only women are
ineligible to serve in military combat.
Crt is highly deferential towards Congress re: nat
security, immigration. Doesnt want to intervene in
control over military. (see Korumatsu.)
Dissent pointed out that 80k non-combat troops needed, exclusion
of women not justified.
Compensatory Classification to redress societys disparate treatment of

Purpose: women & make up for past discrimination is an
Gender important gov purpose.
discrim i.e. Social Security rule favored retired women over men by letting
examples them end up w/ higher level of old age benefits upon retirement.
Califano v. Webster.
i.e. Naval regulation requiring less for women to be promoted was
permissible. Schlesinger.
Establishing Law requiring some affirmative act from unwed fathers

Paternity w/ to confer citizenship onto child born overseas, whereas
Immigration children born to unwed citizen mother has automatic
citizenship.
Court deferred to Congress, said there was legit gov int
in establishing meaningful relationship. Men & women
different, with moms this is est at birth & ok to have
dads show proof.
Harlem School All girls school ested, emphasis on math & science,
for Girls Hypo insulate girls from peer pressure & teen pregnancy.
Important gov purpose: Insulate girls from peer
pressure & teen pregnancy probably important gov int,
math and science could be for compensatory purpose.
Substantially related: could have issues b/c too
attenuated. Could emphasize math & science in a
gender neutral setting.
Ultimately, NY didnt go through w/ plan.
ALIEN Generally court uses SS for alienage classifications.

Classifications First Exception: State self government, gov function.
(Policemen, teachers, parole officers can be reqed to be citizens
(but not notaries.))
Second Exception: Congress. (fed gov can deny welfare
benefits to aliens, Immigration- congress has plenary role over it,
extends even to president himself).
16
Denying Graham v. A states desire to preserve welfare benefits for its own
welfare Richardson citizens is an inadequate reason to deny benefits to
benefits to non-citizens.
LPRs Court used SS, struck down state law barring non-
citizens from welfare benefits.
Reqmt for Foley v. State officers execute public policy, and inherent right
NY State Connellie for ppl to be governed by their citizen peers. (SS doesnt
Troopers to apply, use RB).
be Citizens Police dont formulate policy but have broad authority
over range of discretionary powers.
Citizens are entitled to decision making in the
democratic process, and are best entrusted for
important policy decisions.
Reqmt for Ambach v. Public school teachers influence students attitude

Teachers to Norwick toward gov & politics, preserve societal values.
be Citizens Teachers have wide discretion over how material is
taught, prepare students for participation as citizens.
State can req teachers to be citizens b/c fit within gov
function principle. (RB, not SS).
Reqing Alien No rational justification. Illiteracy is a severe handicap,

Kids to Pay to denies a group the ability to be self sufficient and
Attend Public paradoxical to EP.
School Education is a vital civic institution for preserving
democratic gov.
i.e. TX law reqed alien children to pay tuition, to preserve
resources & deter illegal immigration. No rational justification to
penalize these children.
Scrutiny for other Non marital children: IS

justifications Age, poverty, disability, sexual orientation: RB.
Obergefell Made 2 classes of people: some who want same sex

marriage, ppl who wanted it.
Court used RB b/c based on sexual orientation.
Marriage needed to be protected because of: 1. Personal
choice, 2. Intimate association, 3. Child rearing, 4.
Keystone of social order.
17
FIRST AMENDMENT
1st Am Congress shall make no law respecting the freedom of

speech of ppl peaceably to assemble, and to petition
the gov for a redress of grievances.
British CL & Speech British monarchy prohibited speech by reqing

anything published to go through royal censors (reqed
license & approval).
Criticizing king or queen = constructive treason,
seditious libel if criticized gov. Even if true, could be
sued or thrown in jail.
Early 1st Am Law Sedition Act passed after 1st Am, made it a crime to
criticize gov, but Jefferson pardoned convictions.
1st Am was narrower than how it is interpreted today,
not really enforced until 1930s when it was
determined it applied to states.
1st Am Policy 1. Facilitates representative democracy;

2. Advance knowledge & truth via marketplace of ideas;
3. Promote individual autonomy;
4. Promote tolerance.
Facilitating Theory is that open discussion of candidates & issues

Representative enable voters to make informed decisions, provides
Democracy check on gov abuse (let them criticize gov.)
Informs & empowers;
Valve for dissent & prevents revolts.
Marketplace of Ideas The best test of truth is the pwr of the thought to get
itself accepted in the competition of the market, free
and open debate is most linked to the truth.
o i.e. Wiki
Money on the marketplace is a concern.

o i.e. large corp buying lots of ads / promoting studies that
refute climate change.
Promoting Indiv. Freedom of self expression, values liberty both as an

Autonomy end & means.
18
Promoting Tolerance Talking about our differences & where we come from
makes us more accepting of one another.
Methodology for Distinguish between content neutral & content based

Freedom of Speech restrictions.
Look at statutory challenges. (vagueness, overbreath,
prior restraint).
Discuss unprotected or lower protection
categories.
Content Based Use SS, except for unprotected speech / low value
Restrictions speech (commercial, sexual, etc.).
i.e. No signs on laws = content neutral restriction. No political
signs on lawns = content based restriction.
To Determine if If you have to ask what people are saying, its content
Content Based based.
Have to look at whether gov adopted the reg b/c of
agreement or disagreement with the message it
conveys.
Scrutiny & Content Content based = SS, Content neutral = IS.

based / neutral We dont want gov telling us what we can & cannot
say. Closer we come to gov telling us what to think,
more dangerous.
Content Based / Hypo Type

Neutral Hypos No signs on lawns. Content neutral restriction.
No political signs on lawns. Content based restriction.
No speeches in the student Content neutral restriction.
forum.
No political speeches in student Content based restriction.
forum.
No sports rallies in student Could go either way. Regulating
forum. conduct, no speech. If incidental
effect on speech, would trigger IS.
No speeches unrelated to Content based restriction.
student activities in student
forum.
No speech about labor disputes. Content based.
No pro-republican speeches, Viewpoint based restriction = invalid.
pro-Trump signs, no anti-war /
pro-union speech.
19
Reqmt that Turner FCC had must carry regs. Gov purpose: provide
cable carry Broadcast diversity of broadcasts, preserve local stations.
ing
local channels About access, not content. Content neutral reg. Makes
cable operator carrying a certain no of broadcast
stations, but doesnt depend on the content of
programming.
Gov is not saying that one message is better than
another.
Vagueness A law is unconst. vague if a reas person cant tell what

speech is prohibited and what is permitted.
Test: Person of common intelligence must necessarily
guess at its meaning & differ as to its application.
Why Vagueness Not know what is prohibited has a chilling effect.

is Unconst. People will be afraid to speak even if they have a right
to do so.
Vagueness Ordinance that prohibited 3 or more persons from

Hypos assembling on sidewalks & annoying persons passing
by. Coates.
Laws against conduct that tends to disturb, and
treats contemptuously, and annoying / subversive.
Overbreadth Laws which restrict more speech than is allowed.

Has to be way more speech than the law is permitted
to regulate.
Same prob as Vagueness (chilling effect).
i.e. Prohibiting all live entertainment.
Limits on Overbreadth doctrine has to be substantial. The mere

Overbreadth fact that one can conceive of some impermissible
application is not enough.
Standing for Overbreadth doctrine permits individuals to have

Overbreadth standing to raise claims of others not before the court.
Individuals who otherwise could be constitutionally
punished are allowed to go free.
Policy: chilling effect concern.
Narrowing A narrowing construction can save the law.

Construction for i.e. OH law against nude photos that is only
Overbreadth interpreted to prohibit lewd & lascivious photos.
Reasons: SoP, Federalism, Constitutional Avoidance.
20
LAX Ordinance If LAX ordinance prohibited all 1st Am activity, would

Hypo be both vague and overbroad.
Vague: a reas person would not know what is
prohibited & what is permitted.
Overbroad: prohibits even talking & reading.
i.e. If prohibited only unprotected speech, not overbroad but
still unconstitutionally vague. Reas person would have to hire a
lawyer to know what was prohibited.
Prior Restraint An administrative system or judicial order that

prevents speech from occurring in the first place.
Strong presumption against them & disfavored.
Policy: More inhibiting than a system of subsequent
punishment, b/c have to respect the law.
Collateral Bar Generally a person who violates an unconstitutional

Rule law may not be punished, but a person violating an
unconstitutional prior restraint may be punished.
Court order must be obeyed until it is set aside.
Statute that Near v. MN statute that allowed state crt to enjoin paper from
prevents any MN publishing / circulating any scandalous publication
scandalous was unlawful prior restraint.
publication Might be ok: preventing obstruction to the draft,
location of troops, prohibit obscene publications,
national security.
Info that would NY Times The gov can prohibit a newspapers publication of info
jeopardize v. US that would jeopardize nat security, but the burden to
national justify such an injunction is high.
security i.e. NY Times published excerpts from top secret study of Vietnam
War, gov brought suit to prevent publication, argued nat security
issue.
Prior Restraint Hypo Type

Hypos Prez order prohibiting pics of Could be harmful to our morale, but
coffins returning from Iraq. wouldnt endanger troops in Iraq.
Restrictions on reporters in Could be lawful prior restraint b/c
battlefields with troops. location of troops is matter of
importance with nat security.
Gov attempt to block info found Could go either way. Judge can view
by wikileaks. in chambers.
21
Preventing NE Press Crt order prohibiting press in trial can violate freedom
Press in Crt v. Stuart of press, unless presumption against prior restraint
can be defeated.
Trial court must consider extent of publicity
effectiveness of order, and less drastic alternatives.
o i.e. D was on trial, judge saw media in courtroom as
reasonably likely to prejudice jury. But less drastic steps
could have been taken. Also small town gossip is more
prejudicial anyway, so largely ineffective.
Crt Oder Alexander Crt ordered seizure of assets of a biz convicted of

Seizure of v. US obscenity law doesnt constitute prior restraint in
Assets violation of 1st Am.
including Injunctions and restraining orders that actually forbid
Obscene Books speech activities are classic examples of prior
restraints. This was just an order that deprived D of
specific assets b/c of RICO. D could still engaged in
expressive activities in the future w/o prior approval.
Licensing When gov requires license / permit for speech to

occur.
Applies in public forum cases, concern with viewpoint
discrimination.
Gov can require permission b/c of int in social order &
safety.
Elements of a 1. Too much discretion (no criteria / guidelines).

prior restraint 2. Scope was too broad (i.e. absolute ban);
3. No procedural protections (no review or appeals).
Door to Door Lovell Door to door solicitation has been a vehicle for
Solicitation dissemination of ideas, essential to poorly financed
causes of little people.
i.e. Jeh WN jailed for not getting permit to distribute leaflets.
Invalid on its face b/c city manager had extreme discretion to
deny it & say it was a nuisance.
Door to Door Watchtow Filling out form that gave name to say where Jeh wN
Canvassing er plans to go was unconstitutional.
Gov int: prevent fraud, crime, protect privacy v. Ps
interest in freedom of speech, anonymity, spontaneity.
Overbroad b/c residents could post no solicitation
signs, criminals wouldnt apply for permit anyway.
22
Ordinance City of Mayor had unbridled discretion to grant or deny

Prohibiting Lakewood application for newsracks.
Newsracks Rationale: chilling effect even if power isnt actually
abused. Discrimination cant be determined b/c of
lack of standards. Open to abuse (use pretext in order
to censor).
Too much Unfettered discretion when gov officials to decide who

discretion can use sound amplification on cars, charge Nazi
$1000 for police protection but other groups $100
(public should bear cost if controversial speaker).
Procedural 1. Prompt determination;

Safeguards 2. Timely judicial review of denial of permit.
Prompt decision Need prompt decision by gov as to whether speech is

allowed;
Full & fair hearing before speech prevented.
Prompt & final judicial determination of the final
judicial determination of the validity of any preclusion
of speech.
Forbidding Nat Fed law forbid fed EEs from being compensated for
compensation to Treasury speeches or writing articles. Still allowed to do these
EE Union
fed EEs things but just couldnt get paid.
Gov purpose: prevent bribes and undue influence.
Prohibiting compensation imposed significantly high
burden, which was too high to justify purpose.
Compelling Barnette Law reqd pledge of allegiance in schools, which went

Speech against Jeh WN beliefs. Gov purpose: patriotism.
Flag salute is a form of utterance, and laws that compel
via flag salute speech receive SS.
Policy: State cannot compel a person to believe or
think thoughts & ideas.
Unless not saluting flag constitutes clear & present
danger, state cant compel speech & punish.
License Plate Wooley D covered up live free or die on license plate b/c of
case religious beliefs, was charged with law prohibiting
defacement. Cant compel speech & unconstitutional.
23
Funding Compelling $1 per head to fund a generic ad campaign

generic ad was not compelling livestock producers to speak
because this was a tax. The producers themselves
were not forced to speak.
Military Law made it so that military recruiters had to be

Recruiters on allowed on campus or law schools would not receive
Campus funding. School disapproved b/c of dont ask dont tell.
Even though the law school had to send emails &
flyers, not compelling speech b/c little likelihood the
militarys message would be attributed to the school.
Freedom of association also failed because didnt make
them associate with military in any meaningful way.
Anon Speech Without the right to speak anonymously significant

Importance chilling effect in many circumstances.
i.e. female authors getting published with male name.
Disadv: knowing source makes it so that listener can
weigh credibility, & speaker less likely to be vicious or
libelous.
Anonymity for McIntyre Anonymity is a shield from the tyranny of the majority
v. OH (mem).
Elections
Policy Allows people to speak freely, express controversial
views which is an important part of societal progress.
Anonymous P handed out leaflets anonymously, critized proposed

Leaflets tax levy & charged under law that prohibited
distributing anonymous material in connection with
any election.
Gov purpose (prevent fraud, provide electorate w/
relevant info) insufficient.
Crt said this just aided enforcement of anti-fraud
prohibitions & overbroad. Plus, the identity of the
author was irrelevant.
FIRST AM 1. Are there statutory challenges?

a. Vagueness, overbreath, prior restraint.
ANALYSIS
2. Is the regulation content based?
a. If yes, use SS unless speech is unprotected
category, then usually IS.
24
Unprotected 1. Incitement;
Categories 2. Fighting words;
3. Obscenity.
Gov cant regulate one subcategory more than another.

(cant discriminate. i.e. law that prohibits incitement against
democrats but not repubs).
Under-Protected 1. Commercial speech;

Categories 2. Sexually explicit non-obscene speech;
3. Profanity.
Incitement 1.
2.
Bad tendency;
Reasonableness;
3. Clear & present danger / balancing;
4. Brandenburg (modern day test, reqs imminence).
Espionage Schenck Crime to willfully make or convey false statements

Act with intent to interfere with the military, or willfully
cause or attempt to cause insubordination, or obstruct
draft.
Leaflets to Schenck Leaflets told ppl not to submit to intimidation.

Criticize Draft Crt said whether words are used in such a way to
create a clear & present danger that they will bring
about substantive evils then Congress can prevent it,
esp during times of war.
Test: Natural & intended effect.
Articles by Frohwerk German sympathizers wrote articles saying it was a

German mistake to send soldiers to Franch.
Sympathizers Natural & intended effect that the articles could have
sparked resistance, had at least a small risk that they
could obstruct the draft (despite small circulation).
Conclusion: Clear & present danger of causing substan
evils that Cong has a right to prevent.
Inferring Debs D gave speech and said he had visited socialists

Approval of imprisoned for draft dodging, and they were standing
Draft Dodging firm in their beliefs.
OK to say during peacetime, but during war could have
negative effect on govs ability to raise arm.
Conclusion: Conviction under EA & no 1st Am rights if
he manifested intent to encourage avoiding the draft &
gave such encouragement.
25
Leaflets Abrams Group of anarchists criticized US involvement.

dissent
Criticizing Dissent said needed actual showing a present danger
Obstruction of of immediate evil or intent to bring about that in order
Russian to prohibit.
Revolution No evid that surreptitious publishing of a silly leaflet
by an unknown man will present any immediate
danger.
Policy: 1st Am needs room for marketplace of ideas.
NY Red Scare Whitney Statute prohibited knowingly joining an org that

Statute created a danger to peace & security of the state, and D
joined communist party.
Crt gave deference to CA & said D could be prosecuted,
even though she didnt intend to be an instrument of
terrorism or violence.
Dissent said imminence should be required & higher
standard needed, likelihood of serious injury to state.
Policy: Allowing speech is part of our political process
to find political truth.
Smith Act Dennis Leader of communist party prosecuted for conspiracy

prohibiting to overthrow gov. Said abstract things but still enough.
conspiracy to Crt used balance test: gravity of evil discounted by its
overthrow gov probability justified invasion of free speech to avoid
danger.
Dissent said benefits of free expression are worth the
risk that advocacy of communism will damage the
state.
BRANDEN- Modern
test for
1. Intent (directed to inciting);
2. Imminence;
BURG incitemen
3. Likelihood.
TEST t
Advocacy directed to inciting or producing imminent lawless

action and likely to produce such action.
Branden- OH had law that prohibited advocating crime, violence

terrorism. D was at Klan meaning and said stuff about
Burg minorities.
Holding: mere abstract teaching is different from
preparing a group for violent action. Statute was
overbroad b/c didnt differentiate between the two.
26
Brandenburg Well fucking taking the streets later.

Hypos NAACP boycotters mentioned broken necks & violence
occurred months later.
Protected by 1st Am under Brandenburg test.
Incitement Incitement is directed to inciting or producing

vs. Fighting imminent lawless action & likely to produce such
Words action.
o Makes the audience excited & audience is with
you.
Fighting words are directed to a specific person and

likely to provoke a violent response.
o Audience is against you. You rile them up so
they want to punch you in the fuckin face
(Trump).
Material Holder v. P wanted to give training & assistance to orgs

Humanita designated as terrorist groups, considered material
Support to rian Law
terrorist orgs support under fed law that prohibited such support to
certain foreign orgs designated as engaging in terrorist
activities.
Holding: didnt violate 1st Am, deference given to
Congress.
Note: Didnt meet Brandenburg test, but apply
Brandenburg for exam its an anti-terrorist law
enacted during war on terror.
Fighting Chaplinks Words that inflict injury or tend to incite an immediate

y
breach of the peace.
Words No 1st Am protection b/c such slight social value.
i.e. D said religion is a racket, called police god
damned racketeer & damned fascist. Conviction
upheld under fighting words.
FW Reqmt Fighting words must be directed to a specific person,

and likely to provoke a violent response. Cohen.
Fuck the Draft

Cohen D wore jacket in crthouse that said fuck the draft,
Case arrested for breach of peace. Crt said it was protected
because not directed at any one person & ppl could
avert their eyes.
27
FW Hypos Hypo Result

D said fuck you to start a fight. Not protected under FW.
Speaker gives speech & uses a bunch of Not FW because not directed
racist terms so audience gets mad. at any specific person.
Speaker singles out a single person for Might be FW.
hateful stuff.
Overbroad Gooding i.e. Statute forbids opprobrious words & abusive

Incitement v. Wilson language is too broad.
Statutes D convicted after saying he was going to kill & choke a
police officer, but the statute itself was overbroad &
vague so it was unconstitutional.
Content R.A.V. Content based prohibitions on speech are

Based presumptively invalid.
Incitement Policy: Cant disfavor a topic & make another
Statutes permissible.
i.e. statute only outlaws unprotected speech, but based
on race, creed, gender. Cross burned on front lawn.
Also was viewpoint based, because only prohibited
speech that arouses anger, alarm or resentment.
R.A.V. Rule Within unprotected categories of speech, gov may not

distinguish based on content or viewpoint (makes it so
that 1st Am protections come back in and SS applies).
Gov may not regulate use based on hostility (or
favoritism) towards the underlying message
proscribed.
Exceptions to This makes it so that even though 1st Am came back in, it goes
R.A.V. Rule out and becomes unprotected again (gov can prohibit).
1. Basis for content discrim is the very reason the class of

speech is prohibited.
a. i.e. Very obscene speech.
b. i.e. Threats to prez.
2. Secondary effects.
a. i.e. Limiting adult entertainment via zoning.
b. Even though content based, making it content neutral
would make the reg ineffective.
3. Statute is directed at conduct rather than speech, but

also reaches proscribing speech.
28
a. Ie. Title VII.

b. Wisconsin hate statute that seeks to prevent assault &
hateful motivation is part of the crime. Focus is on
conduct, speech part of how bad the conduct was.
Hostile Feiner Focus shifts from speaker to audience.

Audience i.e. D addressed crowd in NY, audience threatened to
fight him after he sought to incite AAs to take up arms
for equal rights. O had asked him to stop speaking but
didnt.
Holding: crt deferred to local police, who need to have
power to prevent breach of the peace.
Dissent: No imminent threat of riot, and police had
obligation to protect Ds right to speak.
Current Status of During Civil Rights era, crt said state cant make
Hostile criminal the peaceful expression of unpopular views.
Audience Status of hecklers veto is unclear.
Hate Speech- Contributes to oppression, connection between speech

Pro Banning and action, can lead to violence via hate crimes.
Low value, doesnt belong, erodes notions of equality
b/c threatening.
Hate Speech- Slippery slope.

Against Danger of restricting political speech.
Banning Ineffective b/c doesnt ban hate.
Group Libel Beauharn IL had prohibited speech derogatory to a class of

ais citizens of any race, color, creed or religion.
Gov int: History of racial violence, wanted to allow
diverse ppl to live together without obstruction.
D distributed pamphlet to prevent encroachment &
harassment of AAs.
Holding: Group libel, just like libel of a person is
unprotected. Therefore, no clear & present danger
instruction reqd. ILs interest was valid.
Group Libel v. Didnt look at who read the pamphlet and whether
Branden-burg violence was likely. Also didnt look at imminence.
Hasnt been overturned, but chances are this is not
good law b/c there are 1st Am limitations on penalizing
libel.
29
Nazis in Skokie Nazis wanted to march in jewish neighborhood and

injunction issued b/c of fear of violence.
SC dismissed & said Nazis had a right to march. 7th Cir
held Beauharnais wasnt good law anymore.
Statute VA v. Statute made it prima facie evid of intent to intimidate

Black if a cross was burned.
Against
Burning One D burned cross at KKK rally on private property,
another case had kids burning cross on their AA
Cross neighbors yard.
Three Holdings:
1. The Klan member burning on private property was
protected because not directed at any individual
person.
2. Second case was targeted against a specific person and
intent to intimidate via threats was correct.
3. Law that makes an act prima facie evid of intent to
intimidate is overbroad & unconstitutional.
Cross burning R.A.V. was different because it was content based

statute vs. (political affiliation), whereas cross burning statute
R.A.V. didnt discriminate on the basis of viewpoint (not
based on race, gender, sex).
R.A.V. exception also did not apply, where if the
content singled out is the worst of the worst then gov
can single out that expression to prohibit. (burning of
cross could possibly fit here, b/c symbol of hate &
serious threat for 150 years).
Cross burning is as bad as fighting words or true
threats.
Current Hate State can still outlaw fighting words and incitement.
Speech Statutes This ban can be applied to hate speech as long as hate
speech isnt singled out.
State can also penalize conduct motivated by hate, and
hate speech if it is a threat.
Hate Speech Rule: Look at whether the law is about the action (violence)
Hypos or about the message (threat).
Statute Result
Proposed fed statute bans Likely constitutional because not on
violence against person because a particular viewpoint. Focused on
of actual or perceived Title VII conduct and act of violence, not the
30
categories. expression. On exam, argue other

side too that it is content based /
based on conduct.
GA statute makes it a crime to Could be overbroad, but doesnt
wear a mask in public enacted in single out only KKK folks using mask.
1951 in response to the Klan. Crt upheld the ban but probably not
good law today.
Homeless man burns a cross to No intent to intimidate.
stay warm, prosecuted in VA.
Man burned cross in front lawn Only way to know it was deprivation
of AAs, charged with fed statute of civ rights is to know the message
criminalizing deprivation of civil (expression of hate). But if you apply
rights. SS, most crts will hold that there is a
compelling int in protecting civ
rights. Could also argue not
narrowly tailored b/c could be
punished via arson & trespass.
To tell if const Based on If statute fits more on scale of conduct only (i.e.
or unconst conduct assault) more likely to be constitutional.
or
message? If its just a message, most likely unconstitutional (i.e.
burning cross to express racial hatred on private
property).
Middle cases: i.e. statute prohibits assault because of
racial hatred, if focus is on conduct then more likely to
be constitutional.
LEWD & Most sexual speech is entitled to 1st Am protections,

but obscenity & child porn is not.
PROFANE Challenge is drawing the line & defining obscenity.
SPEECH Sexual material & obscenity are not synonymous.
Lewd & Profane Is reg of speech content based?

Speech Rubric If no, use IS.
If yes, apply SS unless 1. unprotected category
(incitement, fighting words, obscenity, child porn) or
2. Lower value speech (libel, commercial speech,
sexually explicity non-obscene.
o Unprotected category: gov can reg and ban
outright, but cant discriminate based on
viewpoint or content within category (RAV)
o Sexually explicit non obscene: content based
zoning rules are ok.
Hate speech is not unprotected, SS applies. But if hate
motivated crime this is different, if hate speech SS comes in
b/c 1st Am issue.
31
Obscenity Roth Obscenity appeals to the prurient interest & is utterly

without redeeming social importance.
Prurient interest = tendency to induce lustful thoughts,
shameful or morbid interest in sex.
Regulating Paris States can regulate obscenity b/c of its secondary

Obscenity Adult effects.
Theater
State Interest in State interest: protect children, non-consenting

Reging addults, correlation between obscenity & public safety
Obscenity (now debunked), quality of life, morals, sexual
oppression of women. (highly debated.)
Deference given to community with regulating
obscenity.
Sexually Quasi protected category, unlike obscenity which is not

Explicit Speech protected.
Policy: danger of chill on protected expression, liberty
interest in freedom, suspicion when gov regulates
morality.
Miller TEST 1. Works must depict or describe sexual conduct

for Obscenity 2. The average person (jury- fact finder), applying
contemporary community standards, would find that
the work appeals to a prurient interest;
3. Work depicts or describes, in a patently offensive way,
sexual conduct as specifically defined by state law
(also to be determined by community standards)
4. The work, taken as a whole, lacks serious literary,
artistic, political or scientific value. (LAPS)
2 and 3 are local standards. 4th is governed by national

standards. Can only restrict if the work complies with these
standards.
Child Porn Ferber Sexual expression using children under age 16.
Gov has compelling interest in protecting children who
make porn because of sex abuse, exploitation, repeated
harm, inducing minors into sex.
Purpose: dry up the market via severe penalties who
sell, advertise & promote child porn.
State has wide leeway & discretion to ban it (widest
ban we have on speech).
32
Child Porn vs. Dont use Miller test, this is not the same as obscenity.
Obscenity 1. Need not appeal to prurient interest;
2. Doesnt need to be patently offensive;
3. Dont need to consider material as a whole.
Banning Virtual Ashcroft Gov int in prohibition: can be used to seduce kids,
Child Porn v. Free easier to prosecute if images make it difficult to know
Speech
Coalition if real children were used (indirect harms to children).
Holding: 1. Mere tendency of speech to encourage
unlawful acts isnt enough to ban it. 2. Gov cant
control a persons private thoughts. 3. Overbroad b/c
banned too much protected speech (i.e. Oscar movies
that depicted teenage sex).
Protect Act of Prohibited knowingly selling, distributing material

2008 intended to cause another to believe it is child porn.
Makes it easier on prosecutors.
Time Place & Young v. Detroit had content based ord, adult theaters needed
Amer to be 1000 ft apart.
Manner: Mini
Sexual Theaters Gov int: preserve quality of urban life.
Even within the area of protected speech, difference in
Speech
content can require a different gov response.
Holding This is low value speech that can be regulated
different from other forms of expression, just cant be
totally suppressed.
Adult 1. Total bans on adult entertainment prohibited.

Entertainment 2. Can be regulated to preserve quality of life (if
Zoning Rules reasonable);
3. Can regulate secondary effects;
4. Can regulate to reduce crime rates (if reasonable).
Nude Barnes Considered expressive conduct, but SC upheld

Dancing complete ban justified by protecting societal order &
morality).
Scalia (majority) said this is conduct & not 1st Am
issue. Souter said can regulate secondary effects.
Ban on Public City of City ord banned all public nudity, preamble said city
Erie v. was responding to increase in crime.
Nudity Paps
Treated as content neutral, not content based.
Regulates conduct, used IS (must be substan related to
important gov int).
33
3 justices said it was expressive conduct within outer

perimeters of 1st Am.
Int was in combating secondary effects, not
suppression of expression.
Obscenity in Stanely v. D was convicted when police searched home &

Ones Own GA incidentally found obscene films, but SC said statute
Home that prohibited private possession of obscene
material violated 1st Am.
Policy: const right to receive info & ideas, regardless of
their social worth, which is fundamental to a free
society.
Special note: doesnt apply to child porn.
Profanity Outer circle, usually protected.

Reasons to restrict profanity & non-obscene sexually
explicit speech: 1. Protect unwilling listener, 2. Protect
children.
Captive There are some situations where gov can regulate

speech because no way for an unwilling listener to
Audience
avoid hearing it (even in privacy of own home).
Doctrine i.e. loudspeaker truck for political campaigns.
Limits on Total bans are disfavored;

Profanity Adult speech cant be restricted to be acceptable to
Restrictions children.
Fuck the Draft Cohen D in court house, arrested for violating state law
Profanity against disturbing peace for wearing Fuck the Draft
jacket.
Not obscenity, not a fighting word (not personally
abusive epithet inherently likely to provoke violent
reaction) nor directed to any one person / provoke a
group.
Sensitive listener can avert their eyes, not like captive
audience. This was a brief exposure in a public place,
which doesnt justify curtailing all speech capable of
offending.
Reasons to One mans vulgarity is another mans lyric.

Allow Profanity Profanity has emotive value.
34
Profanity on Pacifica v. FCC restricted profanity to late night, could sanction

the Radio FCC radio for Carlton monologue Filty Words during the
day.
Broadcast media has a uniquely pervasive presence in
American Life, invades privacy of the home and
therefore has captive audiences.
People tune in and out constantly, prior warning is
insufficient. Accessible to children.
FCC can restrict but not outright ban because of
captive audience.
Media Media Protection

Restrictions Broadcast Media Least amount of 1st Am protection.
Telephone & cable. Semi protected. Different from broadcast b/c
people pay for it. Less concern for unwilling
listener & children. (i.e. no ban on dial a porn).
Internet Most protected, seen as a free speech zone.
Cable Channels OK to have restrictions on sexually explicit programs,

in the interest in protecting children (crt applies
balance test).
Less concern about captive audience.
Scrutiny: semi Speech Scrutiny

protected Profanity SS
categories Person to person adult RB
entertainment
Broadcast Least protective
Zoning for nude dancing RB
Regulations on Internet Speech SS
Cable (sexually explicit non- SS
obscene material)
Violent Stevens US law banned videos of animal cruelty & crush

Speech videos.
Gov int: prevent animal cruelty, enable prosecution.
animal cruelty Struck down b/c Congress cant get at behavior it
doesnt like by restricting images of that behavior (i.e.
virtual child porn).
Violent Video Brown v. CA statute prevented sales of violent video games to

EMA minors.
Games
State int: prevent harm to kids, aid parental authority.
Over inclusive b/c if one parent gives consent, minor
35
can still buy it.

Under inclusive b/c didnt ban all sales that could harm
kids.
Studies flawed (correlation between aggression &
video games, but no causation.) Cant ban speech
because tendency to cause harm, have to show it is
likely to cause harm. (not just causation- imminent
causation.)
Brandenburg Test: No imminent likelihood of violence.
Commercial Speech that does no more than propose a commercial

transaction.
Speech Specifies a particular product based on economic
motivation for promulgating the speech.
Formerly unprotected, but now semi protected (can be
regulated).
Policy for
VA State Free flow of commercial speech is representative of
Bd democracy (free market theory.) But if you have a lot
Protecting
Commercial of money, louder voice.
Speech Individual autonomy (concerns as to whether aids
ability to be ones own person).
i.e. Restricting pharmacists from advertising hurt
consumers b/c couldnt get price info to make
informed decisions.
Permissible 1. Time place and manner regs.

Regs of 2. Prohibiting false & misleading advertisements;
Commercial 3. Prohibiting ads for illegal transactions.
Speech 4. Prior restraint may be OK;
5. No overbreadth concerns.
Scrutiny for Central If commercial speech is neither misleading nor

Commercial Hudson unlawful, gov may prohibit if doing so advances a
Speech substan gov int, and the limits are no more extensive
than necessary.
i.e. NY prohibited utilities from advertising, but
restricted too much speech that might be of int to
consumer, broader than necess to encourage energy
conservation.
Central mem 1. Ad must contain lawful activity & must not be

Hudson TEST misleading.
for Commercial 2. Gov interest must be substantial (IS).
3. Reg must directly advance the gov interest asserted.
36
Speech a. (must directly language makes it look higher

than IS);
4. Reg must not be more extensive than is necessary to
serve that interest.
a. (lots of litigation as to whether this means
narrowly tailored / least restrictive means. For
exam, use not more extensive than necess).
Labeling of Rubin Issue was labeling of beer with % of alcohol, Interest

Beer in restricting drinking, preventing strength wars.
1. Not false or misleading.
2. Gov int substantial.
3. Must directly advance gov int. (fails here b/c doesnt
address a real harm, or show it will alleviate the
probs)
4. Restriction more extensive than necessary (less
intrusive alternatives available).
Restricting ads 44 Issue was restricting ads of liquor prices. Gov int in
Liquorma
of liquor prices restricting drinking, preventing price wars.
rt
1. Not false or misleading.
2. Promoting temperance is substan gov int (general
public health);
3. Law doesnt directly promote temperance, doesnt
reduce demand.
4. Restriction is more extensive than necessary.
(alternatives: public education, put tax on it).
Libel

Tort- assault on a persons reputation.
Not true, published, causes harm.
Seditious Libel Punishing ppl for criticizing the gov.
Public NYT v. Commissioner sued for full page ad. Many detailed
Sullivan allegations turned out to be inaccurate, even though
Figures & breadth of it was true.
Libel AL had libel per se rule, so any inaccuracy would make
a person liable. Strict liability regime not allowed.
Needs actual malice, reporter has to either intend to
lie about public figure, or recklessly disregard truth.
Policy: danger in suppression speech that can be
vehement, caustic, and sometimes unpleasant. This is
an unacceptable risk.
37
Sullivan Test Public figure plaintiff must prove:

1. Clear & convincing evid;
2. Statement is false;
3. D acted with actual malice.
Public Figure Person who has assumed a role of prominence in

Definition public affairs.
One who has thrust himself into public controversy
voluntarily.
Public Figure Coach for U of M team, athletic dir at a major public

Examples university, retired general.
Private Gertz Someone (such as a lawyer) who has achieved no

Figure general fame or notoriety in his community.
Actual malice is not reqd for libel, but needed to
recover punitive damages.
No strict liability.
Private Figure Prominent lawyer, wealthy divorcee, scientist.

Examples More vulnerable to libel bc less access to media than
public figures.
Libel Hypos Hulk Hogan tape by Gawker of him having sex with best friends
wife: matter of private concern.
Enron EE shown in video stealing money. Probably matter of
public concern, corruption. Public official would be top person in
corp, public figure and would have to show actual malice.
IIED Hustler Actual malice reqmt of libel suits by public figures,

also applies to suits for IIED.
Public figures cant recover for IIED without showing
publication contains false statement of fact that is
made with actual malice.
Policy: 1st Am freedoms need some breathing space.
IIED needs outrageous conduct, otherwise you risk
jury imposing liability on their basis of taste or dislike
of a particular expression.
Outrageous Snyder v.
Phelps
Westboro picked military funerals, signs said going to
hell & thank god for dead soldiers.
Speech in
Since this was speech about public concern, cant
Public impose tort liability.
Interest Context in connection with funerals, but commenting
on US military & in permitted public areas (had right
38
to be where they were).
Expressive 1. Intent to convey a specific message (intended to

communicate;
Conduct 2. Substantial likelihood that the message will be
understood by those receiving it.
Laws that reg A law that regulates conduct & has an incidental effect
on speech, is permissible as long as there is a
conduct sufficiently important gov int;
Also, the purpose of the law cant be for the
suppression of speech.
Restriction no greater than is essential.
i.e. D convicted for violating fed law when he burned
draft card. Gov has important int in raising a military,
cards needed for that service.
OBrien Mem Regulation must:
1. Further an important or substantial gov interest;
TEST
2. Interest must be unrelated to the suppression of free
expression, AND
3. The incidental restriction on alleged 1st Am freedoms
must be no greater than is essential to the furtherance
of that interest.
4. Also consider if there are alternate forms of expression.
(Test is similar to commercial speech and essentially IS.)
On its face i.e. Law that prohibits showing a red flag in opposition
targets to gov.
expressive On its face, this is targeted towards expression, SS
conduct applies.
OBrien doesnt 1. Doesnt apply to regs that target the expressive nature
apply to of the conduct.
a. i.e. no cross burning as a message of hate.
2. Doesnt apply to conduct with no impact on
expression.
a. i.e. Tearing up draft card in privacy of own
home. This isnt conduct intended to
communicate that was seen by others who
understood it.
39
Law against TX v. D demonstrated against Reagan politics by burning

Johnson flag, which was against TX law that criminalized
flag burning
desecration of a venerated object that a person knows
will seriously offend others. Failed the OBrien test.
1. Flag burning in protest is expressive conduct.

2. Law was related to the suppression of expression;
3. Gov int in preventing breach of peace (didnt apply),
preserve flag of national unity (suppress speech) did
not pass SS (used b/c content and viewpoint based).
OBrien Hypos Hypo Result

Homeless man burns a flag to OBrien doesnt apply because not
keep warm, prosecuted for expressive. Like losing draft card in
arson (anti burning law). laundry.
Homeless man burns flag to TX law is on its face unconst, b/c on
keep warm, prosecuted under its face discriminates on viewpoint.
TX anti-desecration law. OBrien doesnt apply b/c no int not
related to suppressing expression.
Homeless man burns flag to Same result.
keep warm, prosecuted under
(later overturned) fed statute.
Law against sleeping in US Law not targeted at expression,
parks, protest in DC park to targeted at conduct w/ incidental
protest gov response to effect on expression. Substan gov int
homelessness. in preserving parks, not related to
suppression of speech, no greater
than necess to achieve gov purpose.
Public Forum Speech that is on public property.

Traditional approach was that property rights
Doctrine trumped free speech, gov could do what it wanted.
Modern view: streets & parks are held in trust for
public use. Right of citizen to use for speech cant be
regulated or denied, free speech rights trump gov
property rights.
Types of Forums 1. Trad public forum;

2. Designated public forum;
3. Limited public forum;
4. Non-public forum.
Is reg content 1. Reg of conduct w/ incidental impact on expression?

neutral? if yes, apply OBrien test.
2. Reg of expression gov property? if yes, apply PF
test.
40
1. Trad Public Hague v. Publicly owned space or facility that has traditionally
CIO been open to the public for purposes of
Forum
communication.
i.e. streets and parks (from time immemorial have
been used by public for purposes of assembly.)
Right to speak must be in consonance with peace &
good order (cant block all traffic).
TPF Standard of 1. Viewpoint restrictions invalid;

Review 2. Content based restrictions: SS (necess to achieve
compelling gov int);
3. Content neutral restrictions: Time, Place & Manner
test.
a. Gov int must be significant or substantial;
b. Int must be unrelated to suppression of
expression (content neutral);
c. Reg must burden no more speech than
necessary;
d. Alternative channels of communication must
remain open.
Ord to cut down Schneider Ordinance barred handing out leaflets on public
on litter v. NJ streets, reason was to reduce litter.
Court said reducing litter didnt justify total ban. Could
put out trashcans or prosecute those littering, had
other means to reduce litter.
Can still regulate but no total ban.
General principles: speakers have the right to access
public space, gov has power to regulate public space,
total bans disfavored, balancing test (1st Am rights of
speaker against govs interest in regulating space).
2. Designated Publicly owned space or facility that has not been

Public Forum traditionally open to the public, but the gov has chosen
to open it up to all speakers.
Once a forum is opened up to assembly or speaking by
some groups, gov cant prohibit others from
assembling or speaking on basis of what they intend to
say.
Selective exclusion cant be based on content alone,
must be based on neutral criteria (reas time, place,
manner restriction).
41
DPF Standard of The same as for traditional PF while the forum is open,
Review but the gov can close the forum.
Difference Gov can close DPF.

between PF & i.e. elementary school room open after hours to
DPF community groups.
3. Limited Public Publicly owned space or facility that is only

Forum occasionally open to a limited number of speakers for
purposes of communication.
LPF Standard of 1. Gov can distinguish based on speaker or subject

Review matter.
2. Reasonable, no viewpoint discrimination.
4. Non Public Publicly owned space or facility that has never been
Forum open to the public for purposes of communication.
NPF Standard of Reasonable, viewpoint neutral.

Review
Modern Public 1. No content discrimination (if content discrim, SS
Forum Test applies);
2. Substantial gov int;
3. Int must be unrelated to suppression of expression;
4. Effect on speech must be no greater than necessary to
achieve that interest.
5. Alternate channels of communication must be
available.
Similar to Obrien test, some crts have said exactly the same.
Content Based City of Chicago ord prohibited picketing in front of schools

Chicago v. except for labor picketing, content based so SS applied.
Restrictions Mosely
Policy: gov cant grant use of forum to ppl whose views
it finds acceptable but deny it to those wishing to
express less favored views.
Have to distinguish between speakers in a content
neutral manner (i.e. two groups want parade, give
permit to one who applied first).
Public Forum Hypo Result

Hypos Limiting the hours that a sound Ok to protect privacy of citizens.
truck operates.
Ord prohibiting speaking loudly This is a reas time place & manner
by the school. restriction so as not to disrupt
students, & not content based.
42
Ordinance for no Crt struck this down, total ban on

demonstrations on steps of SC. speech which was not necessary to
preserve the peace & quiet of the crt.
No sleeping in the park. Upheld as a public forum case as well
as under OBrien.
Prior Restraints In public forum context, same reqmts.

& PF Import gov int, clear criteria to reduce discretion of
official granting / denying permits or licenses,
procedural safeguards.
Loud Rock Ward v. Park reg reqd park official to control volume of
Rock concerts so as not to disturb residence.
Concert Against
Racism Has to be substan gov int, unrelated to suppression of
expression, no greater than necess to achieve the int.
Doesnt require that it be the least restrictive means
(allow bands to use their own soundperson), just
needs to be IS and not SS.
Gov int would be achieved less effectively absent the
reg, and bands can still perform but the quiet is
maintained.
Chalking University bans chalking on sidewalks, gov int in

Hypo civility & aesthetic.
Civility is related to suppression of expression and
would fail, but aesthetic is valid and has been held to
be important gov int.
Effect on speech no greater than necessary? Univ will
say not a total ban b/c can express other ways.
Plaintiffs will say total ban.
Alternative channels? Is there some time or some
place where the students would be allowed to chalk.
i.e. designate a wall for them to write on.
Designated & Designated: Open to public for all purposes so gov

Limited PFs cant discriminate.
o i.e. public schools open for outside activities,
cant have content based discrimination.
o i.e. cant have auditorium open to outside
groups but prohibit pro-Trump groups. But ok
to say no community groups because worried
about wear and tear on facilities.
Limited PF: Open for limited no. or type of speakers.
Gov can distinguish between speakers but need only
43
be reasonable, viewpoint neutral.

o i.e. prohibiting prayer is unconstitutional. i.e.
CLS case.
Student Orgs CLS v. Law school had policy that reqd student orgs to accept
Martinez all students.
School had created a limited public forum, reg just had
to be reas & viewpoint neutral.
LPF allows distinctions based on content, but not on
viewpoint.
Non Public Was never open for communication and was never the
purpose of the space, but still some 1st Am rights there.
Forums Reg must be reas, no viewpoint discrimination, RB
applies.
NPF Hypos Hypo

Civil rights protesters
Result
Crt said state has power to preserve its
on jail driveway. property for use to which it was lawfully
dedicated. On sidewalk which is usually TPF,
but blocked jail driveway which is NPF. Cars
getting in and out of jail were blocked, so
restriction only needed to be reas.
Anti war activist wants Content based restriction ok. Not a forum for
to speak at military speech, was to train soldiers. Even handed
base, which had a rule (banned all public speeches) and not
against any political viewpoint based.
speech.
Sidewalk outside post 4 justicies said NPF, because only used to
office. access post office.
Airports ISCKON v. Airport had a ban on sale or distribution of literature

Lee or solicitation of money.
Purpose of airports is travel, was never trad held out
for public use, nor trad used for communication. This
was NPF and just needed to be reas.
Open public space, but ban on solicitation was ok
because solicitation disrupts flow of traffic.
Debate on Congressional debate with limited access to candidates

Radio with strong popular support.
Forbes challenged the rule, but was found to be NPF.
Selective access was reas, and not viewpoint based.
Public Forum Tradition of availability of place for communication;

Factors Extent to which speech is incompatible w/ function of
44
public place (i.e. airport travelers trying to get

through);
Look at whether speech is the primary purpose of the
place.
FREE EXERCISE &

ESTABLISHMENT CLAUSES
Establishment Congress shall make no law respecting an
establishment of religion.
Clause
Free Exercise or prohibit the free exercise thereof.

Clause
Cant discriminate against a religion, but incidental effect is
okay.
Free Exercise of 1. Laws that discriminate on the basis of religion receive

Religion Rules SS. (these laws are almost always struck down).
2. Facially neutral laws that have an incidental impact on
the free exercise of religion get RB.
Facially Neutral Laws Equal protection: Facially neutral laws that have a
with an incidental disparate impact on a suspect class: RB.
impact Free Speech: Facially neutral laws that have an
incidental impact on expression: OBrien Test
Free exercise: Facially neutral laws that have an
incidental impact on the free exercise of religion:
Sherbert said SS, but later the test changed.
Early Case: Polygamy Reynolds 1878: state could prohibit polygamy.

Distinction between regulating conduct and belief
Regulating belief is never ok.
Regulating conduct is ok.
It was okay for the state to prohibit people from
practicing polygamy, not okay if the state prohibited
people from being Mormon.
Peyote Case Smith P was fired for using peyote for religion, and denied
unemp because use of the drug was illegal in OR.
Facially neutral law with incidental effect on Ps
religion. P would have to chose between his religion
45
and following the law in OR.

The respondents wanted an exception beyond the
reach of criminal law.
If they used the Sherbert test, would have to show the
law was necessary to achieve a compelling interest.
But the concern was that every religion would look for
an exception, lots of minority religions would look to
get out of laws from paying taxes to obeying traffic
ordinances. Ultimately didnt even need to us RB, there
is no claim at all.
Smith Test mem New Test after Sherbert: Neutral regulation of conduct
with incident impact on religion does not violate the
Free Exercise Clause.
Has the lowest level of scrutiny.
Religious Freedom Passed after Smith.

Restoration Act Gov may substantially burden a persons exercise of
religion only if it demonstrates that application of the
burden to the person:
1. Is in furtherance of a compelling gov int; and
2. Is the least restrictive means of furthering that
compelling interest.
Hobby Lobby Affordable Care Act: Rs had to pay for med care,
including birth control. Said facially neutral law that
had incidental impact on their FE of religion.
If they had sued under 1st Am FEC: would not have
won because incidental effect and would have no
claim.
But they were able to sue under RFRA, and it violated
because not sufficiently narrowly tailored to achieve
comp gov int.
RFRA doesnt apply to states, but does apply to fed gov.
Religion in Prison Cutter RLUIPA: compelling interest

case Violates EC? Crt said space between the FEC and Est
Clause.
Under the First Amendment Free Exercise Clause, the
government may make a reasonable accommodation
of religious practice for institutionalized persons
without establishing religion in violation of the First
Amendment Establishment Clause.
46
Scholarship Case Locke WA had a scholarship program that couldnt be used

for pursuing a degree in theology, but could be used
for a private Christian college pursuing another
degree.
Law was not discriminatory, no FEC violation.
Can still pursue theology, just not on taxpayer money.
Space Between FEC There is space between FEC and EC, not required to do
and EC so but can do so. i.e. doesnt have to deny them the
money but can deny them without violating
constitution, not motivated by discrimination. This is
whether it is accommodating a religion or denying a
benefit.
Establishment Separation of Church and State.

Clause Theories Neutrality (gov should be neutral, cant prefer one
religion over another).
Non-coercion and Anti-doctrination (gov can take
some pro religious stance as long as gov is not forcing
ppl to practice religion.
Accommodation: allow the largest amount of interact
between gov and religion, allow the max interaction.
Separation of Most common, that religion should be completely

Church & State separate from gov.
Easiest to apply but complete separation is
unworkable.
Neutrality i.e. give same benefits to any religion. As long as the

basis of the gov action is secular, the crt upholds it.
Test for neutrality is: non endorsement.
i.e. crt upheld school vouchers to help parents send
kids to catholic school, ppl could use where they
wanted and didnt violate EC. Gov cant prefer religion.
Non-Coercion Requires even more. Maybe gov can prefer a religion,

as long as gov doesnt make someone practice it.
i.e. school prayer at grad ceremonies, violated because
looked like school was coercing ppl to engage in
religious practice.
Accommodation Would allow a lot of overlap between church and state,

as long as gov doesnt prefer one religion over another.
(no state religion, i.e. ok to have prayer in school as long as non
47
impermissible purpose). denominational. Ok for ppl of all faiths to come and

pray.
Lynch Display had santa, reindeer, toys, seasons greetings,

and crche.
Test: look at the context, and see if there is a secular
purpose in addition to the religious purpose. If yes,
then it is non-endorsement, and the message conveyed
does not endorse religion and is about a general
holiday greeting.
Alleghany County Two displays. Creche on courthouse steps, and

v. ACLU another display had menorah next to tree and sign
endorsing liberty.
Govs use of religious symbolism is unconstitutional if
it has the effect of endorsing religious beliefs.
Context is key.
Creche was alone and violated, menorah was okay
because other things around it to detract from
religious message, was actually secular message.
Free Exercise Santeria animal sacrifice- law has no killing outside

Hypos professional butcher shops. Has only an incidental
effect on those who want to practice this ritual,
therefore RB and would not violate FEC.
No ritual sacrifice of animals. Would use SS because
directed towards a religious practice, since other
killings of animals would be ok.
Church in historical district, law that says no
renovating houses of worship. SS because directly
discriminates.
No building renovations without prior approval. RB,
would be okay. Facially neutral law with an incidental
effect on churches.
Play in the Joints Free exercise: pro religion clause, taking a

constitutional position in favor of religious practice,
gov cant interfere with this right.
Establishment clause: limits how pro-religion the gov
can be.
i.e. FEC doesnt require exemptions to applicable laws
for people to exercise their religion. Or letting native
americans use peyote. FEC doesnt require this.
RLUIPA: gave ppl more rights than they would have
48
under FEC, question as whether they were acting too

pro-religion that they violated the EC.
Lemon Test Lemon v.

Kurtzman
1. Statute must have secular legislative purpose;
2. Principal effect must be one that neither advances nor
inhibits religion;
3. Statute must not foster an excessive gov
entanglement with religion.
Alternative Tests Anti-coercion;

Non-endorsement;
Impermissible purpose.
10 Commandments in Didnt violate EC, was to publicize movie and to

courthouse celebrate a major source of western law.
Crt again looks at context to determine the purpose.
Moment of silence in This violated the constitution because it was

school endorsement of praying and religious practice.
School Prayer Engle v. School board wrote a prayer, principal delivered it.
Vitale Was nondenominational and wasnt advancing any
particular sect.
Violated EC because this was a gov mandated prayer
that all schoolchildren had to say, was endorsing
religion in public schools and this is a purely religious
functions which should be left to people themselves.
Other violations: reading bible at beginning of school,
moment of silence which was pretext to reintroduce
prayer.
Prayer at Lee v. Non-sectarian prayer at high school graduation,

Weisman principal arranged for Rabbi to come and gave
Graduation
guidance on how the prayer should be done.
Court use the non-coercion test. Principal chose the
speaker, this was a captive audience, and missing
graduation would be forfeiture of intangible benefits
via right of passage.
Peer pressure to conform, and compulsion to
participate so as not to be different from peers.
Scalia dissent said it was not coercion- student could
remain silent. History of prayer at public functions.
Pledge of allegiance?
49

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1 Con Law II Zietlow Spring 2016 - C.

Sources of 14th Amendment, 1st Amendment.

1st Amendment Congress shall make no law respecting an establishment of religion,

Evaluating 1. Ask what is the scope of the right.

VAWA Created by fed law as giving a remedy victims of DV. Was

State action A private entity is only treated as state action if there is a

Traditionally i.e. Police, fire, tax collection, company town, primary

Entanglement 2 types 1. Significant state involvement;

Racially Shelly v. Property governed by racially discriminatory covenant,

Auth not Authorization alone is not enough. Causation is key, who

Government Funding alone is not enough. State has to use coercive

STATE Hand out Public function

Entanglement Hand out Theory: state and private actor is entwined.

Significant state involvement Coercive power or

New exception: handout Brentwood Academy: An action taken by a private

EQUAL RB (must be rationally related to a legitimate gov interest):

Reasons for Intent of the framers

RATIONAL BASIS Test: Rationally related to a legitimate gov purpose.

INTERMEDIATE Test: substantially related to an important (or

STRICT SCRUTINY Test: narrowly tailored to achieve a compelling gov

EQUAL No state shall deny to any person within its juris

Hypos: Does it No position shall be filled by a Yes, facial discrimination.

Rationale Basis Rule: Categorization in the law will be upheld if it is rat

economy (dont have the crt second guess everything

Gov Purpose Any conceivable purpose is enough. i.e. preserve

Amendment to Romer v. CO amended state constitution and prohibited legis,

Amendment to RR Amendment to RR Retirement Act, ended dual benefits

Preventing US Dept Fed food stamp reg denied benefits to households

EP and City of Ppl w/ disabilities have different needs, doesnt

Reasons for Immutable characteristic;

Examples of Court will scrutinize legis more closely if it:

Korematsu Legal restrictions which curtail civil rights of a racial

urgent need for security during war.

Korematsu Dissent said reasons based largely on misinformation,

Rules for Crt always uses SS, has to be necessary to achieve a

Restrictions Loving v. Restricting freedom to marry solely b/c of racial

Plessy Harlan said constitution is color blind.

Segregating Public respect for justice system is undermined when

Intentional Rule Discrimination Type

Reason for If a court could invalidate a statute simply b/c it

Capital McCleskey Individual P has to show he was discriminated,

Voting at City of Discriminatory motivation is a necessary ingredient,

Closing of Still have to show intent and impact to find EP violation

Statistics to Generally, statistics to show intent are not enough (only

Discriminato Arlington Discrimination must be a motivating factor, doesnt

Process to Process can be relevant. i.e. literary tests to vote. Made

Discrim. Hypo To prove discrim. intent

Remedies Brown II Huge issue w/ EP violations, complicated & very

Affirmative Swann v. 1. Race neutral plans may be inadequate to remedy past

Inter-District Milliken v. If there is no evid that surrounding school districts

Constitutional violation in one district must produce a

Dissolving OK City v. A decree to remedy past discrimination in public

Mechanical Mechanical categorization based on race is not

Compelling Unless you are remedying your own race

Discrim w/ Classifications to help minorities and remedy

Remedying Richmond Remedying societal discrimination is not a compelling

Affirmative Grutter v. Race or ethnic background may be deemed a plus that

Race giving Gratz v. If admissions gives automatic 20 points, makes the

GENDER BASED IS applies.

Classifications Frontiero Cannot have classification based on outdated notions &

administrators. Avoiding intrafamily controversy was not rational

Defending US v. VA Parties who seek to defend gender based gov action

To uphold sex Court will uphold a sex classification if it is to