Constitutional Law II Outline Ancheta (Chemerinsky book)

Equal Protection
I. Introduction
a. Equal Protection Clause: No state shalldeny to any person within its
jurisdiction the equal protection of the laws
i. Bolling v. Sharpe applies the Equal Protection Clause to the
federal government via the Due Process Clause (discrimination
may be so unjustifiable as to be violative of due process)
b. Framework
i. What is the classification?
1. Classifications on the face of the law
2. Facially-neutral laws with a discriminatory impact to the
law or discriminatory effects from its administration
ii. What is the appropriate level of scrutiny (Standard of Review)?
1. Strict: race, national origin, sometimes alienage
2. Intermediate: gender, non-marital children
3. Rational Basis Test: minimum level for all other classes
iii. Does the government action meet the level of scrutiny?
Ends/Means analysis
c. Protection of Fundamental Rights under Equal Protection
i. Typically used for discrimination based on classifications, such
as race, gender, alienage, legitimacy, age, disability, wealth,
sexual orientation
ii. BUT, also used if the government discriminates among people as
to the exercise of a fundamental right (see Con Law I), such as
right to procreate, voting, access to judicial process, interstate
travel
II. Rational Basis Test: minimal level of scrutiny that all government actions
challenged under equal protection must meet
a. Requirements
i. Legitimate Purpose
1. What is legitimate?
a. The Court is typically extremely deferential to the
government
b. Romer v. Evans: no legitimate purpose for Colorado
Amendment that repealed all laws protecting gays,
lesbians, and bisexuals from discrimination and
prohibited all future government action to protect
these individuals from discrimination
2. Actual purpose or any conceivable purpose?
a. Any conceivable interest, even if not the
governments actual purpose, can suffice
b. U.S. Railroad Retirement Board v. Fritz: upheld a
federal law designed to prevent retired railroad
workers from receiving benefits under both the
Social Security system and the railroad retirement
system; irrelevant whether this reasoning in fact
underlies the legislative decision because this Court
 never has insisted that a legislative body articulate
its reasons for enacting a statute
c. Federal Communications Commission v. Beach
Communications: reaffirmed that any conceivable
legislative purpose is sufficient and stated that
those attacking the rationality of the legislative
classification have the burden to [negate] every
conceivable basis which might support it
d. Critics argue that the rational basis of review is only
meaningful if the Court limits itself to looking at the
actual purpose for a law
ii. Reasonable Relationship
1. Deference to the government laws will be upheld unless
the governments action is clearly wrong, a display of
arbitrary power, not an exercise of judgment
2. Tolerance of under- and over- inclusive laws
a. Underinclusive laws
i. Laws that dont regulate all who are similarly
situated; raise concern that the government
has enacted a law that targets a particular
politically powerless group or that exempts
those with more political clout
ii. Railway Express Agency, Inc. v. New York:
upheld an ordinance that banned all
advertising on the sides of trucks unless the
ad was for the business of the trucks owner
b. Overinclusive laws
i. Laws that cover more people than it needs to
in order to accomplish its purpose; unfair to
those who are unnecessarily regulated and
they risk burden[ing] a politically powerless
group which would have been spared if it had
enough clout to compel normal attention to
the relevant costs and benefits
ii. New York City Transit Authority v. Beazer:
upheld law prohibiting those in methadone
maintenance programs from working for the
NYCTA, but the vast majority of those in
programs posed no safety risk
c. perfection is by no means required (Vance v.
Bradley)
III. Classifications
a. Race and National Origin Classifications
i. Strict scrutiny standard; justified by the long history of racial
discrimination, which make it very likely that racial
classifications will be based on prejudices rather than legitimate
public concerns, the relative political powerlessness of the
groups, and that race is an immutable trait
ii. Classifications on the Face of the Law:
1. Classifications disadvantaging racial minorities

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 a. Korematsu v. United States: upheld the
constitutionality of the evacuation of Japanese-
Americans, accepting the governments claim that
they posed a serious risk to national security and
that there was no way of screening to identify such
individuals; enormously over- and under- inclusive;
perhaps best understood as an example of the
Courts deference to the military, especially in
wartime
2. Classifications disadvantaging both whites and minorities
a. Loving v. Virginia: declared VAs miscegenation
statute that made is a crime for a white person to
marry outside the Caucasian race; statute relied
solely on distinctions drawn according to race and
the equal application of it does not remove it from
the 14th amendments proscription
3. Segregation and Desegregation
a. Plessy v. Ferguson: upheld laws that mandated
blacks and whites use separate but equal
facilities, stating that the intention of the 14 th
amendment was to enforce the equality but not to
abolish distinctions based on color and, thus, such
laws are not unreasonable
b. Brown v. Board of Education: eliminated the
doctrine of separate but equal in the field of
education, stating that is generates a feeling of
inferiority in black children which interferes with
their learning; eventually separate but equal was
invalidated in other contexts
c. Problem of remediesBrown mandated the
desegregation of schools including the
reassignment of pupils and teachers, which was
met by a massive resistance and was especially
difficult because of residential sorting
4. Classifications benefiting racial minorities Affirmative
Action
a. Historically struggled with the standard of review
i. UC Regents v. Bakke: concluded that
affirmative action violated Title VI of the
1964 Civil Rights Act, but they didnt even
discuss the level of scrutiny
ii. Fullilove v. Klutznick: majority opinion didnt
concern the appropriate level, but upheld a
federal law which required 10% of public
works monies to be set aside for minority-
owned businesses
iii. United States v. Paradise: upheld mandate
that a qualified black be hired every time a
white was hired or promoted and the
plurality decision found that the relief

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 ordered survives even strict scrutiny
analysis
iv. Wygant v. Jackson: Court rejected the
affirmative action plan as being not
sufficiently narrowly tailored (also a plurality)
v. Eventually, strict scrutiny emerged as the
standard in Croson
b. In Employment
i. Richmond v. J.A. Croson Co.: Court held that
strict scrutiny should be used in evaluating
state and local affirmative action programs,
invalidating a Richmond, VA plan to set aside
30% of public works monies for minority-
owned businesses
1. Compelling interest: remedying
societal discrimination is not
compelling, remedying present effects
of past discrimination by a particular
institution can be compelling IF theres
a strong basis in evidence
2. Necessary: over-inclusive, race-neutral
alternatives must be considered,
quotas are problematic
ii. Metro Broadcasting, Inc. v. Federal
Communications Commission: Court held
that congressionally approved affirmative
action programs only need to meet
intermediate scrutiny (to the extent that
they serve important governmental
objectives within the power of Congress and
are substantially related to the achievement
of those objectives)
iii. Adarand Constructors, Inc. v. Pena: overruled
Metro, concluding that federal racial
classifications must serve a compelling
governmental interest and must be narrowly
tailored to further that interest
iv. There still tends to be a split regarding the
use of strict scrutiny v. intermediate scrutiny
c. In Higher Education
i. Hopwood v. University of Texas: 5th circuit
ruled that diversity is not compelling enough
to use race as a factor in admissions
decisions
ii. Grutter v. Bollinger: upheld the University of
Michigan Law Schools affirmative action
program, ruling that colleges and universities
have a compelling interest in creating a
diverse student body and that they may use

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 race as one factor, among many, to benefit
minorities and enhance diversity
iii. Gratz v. Bollinger: invalidated an affirmative
action program for undergraduate
admissions which added 20 points to the
applications for minority students, ruling that
the program was not sufficiently narrowly
tailored to meet the strict scrutiny for racial
classifications
iv. Thus, diversity is a compelling interest in
education and universities may use race as a
factor to ensure diversity, BUT quotas or
numerical quantification of benefits if
impermissible
d. 4 major objectives for affirmative action
i. Remedying past discrimination
ii. Diversity
iii. Providing role models for those in minority
communities
iv. Increasing services for minority communities
e. Race-Conscious Redistricting Gerrymandering
i. Strict scrutiny standard (Shaw v. Reno, and
each subsequent case)
ii. 2 ways to demonstrate that race was used in
drawing election districts (trigger strict
scrutiny)
1. A district has a bizarre shape that, in
itself, makes clear that race was the
basis for drawing the lines (Shaw v.
Reno and Shaw v. Hunt)
2. Proof that race was a predominant
factor in drawing the lines (Miller v.
Johnson and Bush v. Vera)
iii. Justifications to meet strict scrutiny
1. History of race discrimination with
regard to voting is not compelling
2. A political goal, such as protecting a
safe seat for an incumbent or creating
a district which has a majority of one
political party, is compelling
3. Easley v. Cromartie: predominance of
political party considerations does not
trigger strict scrutiny
iii. Facially Neutral Laws with a Discriminatory Impact
1. Proof of a Discriminatory Purpose (v. effect)
a. Washington v. Davis: held that proof of a
discriminatory impact is insufficient, by itself, to
show the existence of a racial classification (in this
case, black applicants for the D.C. police force
failed exam more than whites), justified because

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 the purpose of the 14th amendment is the
prevention of official conduct discriminating on the
basis of race and mere impact would raise
serious questions abouta whole range of
statutes that may be more burdensome to the poor
and to the average black than to more affluent
white
b. McCleskey v. Kemp: held that proof of
discriminatory impact in the administration of the
death penalty was insufficient to show an equal
protection violation, arguing that defendant must
prove that the decisionmakers in his case acted
with discriminatory purpose
c. However, some civil rights statutes, i.e. Title VII of
the 1964 Civil Rights Act, allow proof of
discriminatory impact to establish a violation of the
law; the Court maintains that under the
Constitution, proof of discriminatory impact is
insufficient, by itself, to establish a denial of equal
protection
d. Issue over the ultimate purpose of the 14th
amendmentis it only about equal treatment by
the government or should it also be concerned with
equal rights?
2. Difficulty in proving a discriminatory purpose
a. Personnel Administrator of Massachusetts v.
Feeney: Court provided a narrow definition of intent
(this case involved a challenge to a citys refusal to
rezone a parcel of land to allow construction of low
and moderate income housing); Discriminatory
purpose, however, implies more than intent as
volition or intent as awareness of consequences. It
implies that the decisionmakerselected or
reaffirmed a particular course of action at least in
part because of, not merely in spite of, its
adverse effects upon an identifiable group.
b. Village of Arlington Heights v. Metropolitan Housing
Development Corp.: ruled that the plaintiff must
prove that a discriminatory purpose has been a
motivating factor in the decision, which can be
proved by such evidence as
i. Being so clearly discriminatory as to allow no
other explanation than that it was adopted
for impermissible purposes
ii. The history surrounding the governments
actions
iii. The legislative or administrative history of
the law,

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 and then the burden shifts to the government to
prove that it would have taken the same action
without the discriminatory motivation
b. Alien Classifications
i. Introductions
1. Different from National Origin Classifications because this
refers to discrimination against noncitizens, not targeted
against a specific country that a person, or his ancestors,
comes from
2. No person, as stated in the 14th amendment has been
interpreted to not be specific to citizens (Yick Wo v.
Hopkins)
3. State and local laws can be challenged based on equal
protection AND preemption (federal immigration laws
wholly occupy the field and preempt state efforts to
regulate immigration)
ii. Strict scrutiny standard
1. Prior to Graham, the Court had been extremely
deferential, so long as discrimination related to a special
public interest
2. Graham v. Richardson: Court applied strict scrutiny and
declared unconstitutional a PA law that made noncitizens
ineligible to receive public assistance and a AZ law that
limited receipt of benefits to citizens or 15 year residents;
Court stated that aliens as a class are a prime example
of a discrete and insular minority for whom heightened
judicial solicitude is appropriate
3. Later applied Graham to Sugarman v. Dougall (invalidated
a NY law that prevented aliens from holding civil service
jobs) and In re Griffiths (invalidated a state law that
excluded aliens from being licensed as attorneys)
iii. Exceptions to strict scrutiny standard
1. Governmental function
a. Rational review standard used when classification is
related to self-government and the democratic
process
b. Foley v. Connelie: applied rational basis test to
uphold a state law that required citizenship in order
for a person to be a police officer, emphasizing that
police officers are integral to self-government and
enforce the laws that are the product of the
democratic process; a state may confine the
performance of this important public responsibility
to citizens of the U.S.
c. Ambach v. Norwick: upheld a state law that
required citizenship for a person to be an
elementary or secondary school teacher, stating
that teachers are integral to self-government
because they are responsible for inculcating
democratic values in youth; states thus have a

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 legitimate interest in excluding aliens from
elementary and secondary school classrooms
d. Cabell v. Chavez-Salido: applied Foley and Ambach
to hold that a state may require citizenship for
probation officers because they serve as both law
enforcement officers and also as teachers
e. Bernal v. Fainter: Court did not apply rational basis
test to a state law that created a citizenship
requirement in order for a person to be a notary
public, emphasizing that this is a narrow exception
that applies only if it is specifically tailored to those
who participate directly in the formulation,
execution, or review of broad public policy, and
hence perform functions that go to the heard of
representative government
f. Overview of Government Function exception:
Classifications Upheld Classifications
under Rational Basis Overturned under
Test Strict Scrutiny
Voting Attorney license
Public Office Engineering
Jury Service Notary Public
Government Jobs (police Government Jobs
officer, public school (state and local civil
teacher, probation service
officer) Higher Education
Financial Aid
2. Congressionally approved discrimination
a. Generally, the Court has ruled that the federal
governments plenary power to control immigration
requires judicial deference and that therefore only
rational basis review is used if Congress or a
presidential order has created the alien
classification
b. Mathews v. Diaz: upheld a federal statute that
denied Medicaid benefits to aliens unless they are
LPRs and have resided at least 5 years in the U.S
because it was not wholly irrational and served
the legitimate interests of the federal
government in preserving the fiscal integrity of the
program; since decisions in matters between the
U.S. and alien visitors implicate relations with
foreign powers and must be defined in light of the
changing political and economic circumstances,
such decisions are frequently of a character more
appropriate to either the Legislature or the
Executive than to the Judiciary
c. Hampton v. Wong: invalidated a federal civil service
regulation that denied employment to aliens
because it was adopted by the Civil Service

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 Commission which had no involvement in making
decisions concerning immigration or foreign policy
nor was there anything to indicate that the
Commission actually made any considered
evaluation of the relative desirability of a simple
exclusionary ruleor the valueof enlarging the
pool of qualified employees; thus the exception
cannot be used for decisions by federal
administrative agencies, only Congress and the
president
iv. Undocumented aliens
1. Plyer v. Doe: overturned a Texas law that provided a free
public education for children of citizens and of
documented aliens, but required that undocumented
aliens pay for their schooling by using a more
intermediate scrutiny analysis in evaluating the
discrimination against undocumented alien children with
regard to education; it hardly can be argued rationally
that anyone benefits from the creation within our borders
of a sub-class of illiterate persons many of whom will
remain in the State, adding to the problems and costs of
both State and National Governments attendant upon
unemployment, welfare, and crime
2. However, Courts will likely have the opportunity to
reconsider Plyer as states continue to adopt broad laws
discriminating against undocumented aliens, i.e. CA Prop
187
c. Gender Classifications
i. Like race classification, laws can be facially discriminatory or
facially-neutral (where you must show intent and effect by
applying Feeney)
ii. Intermediate scrutiny standard for both gender classifications
discriminating against women and those discriminating against
men
1. In 1971, in Reed v. Reed, the Court for the first time
invalidated a gender classification, applying only rational
basis review, stating a classification must be reasonable,
not arbitrary and must rest upon some ground of
difference having a fair and substantial relation to that
object of the legislation, so that all persons similarly
circumstanced shall be treated alike
2. Frontiero v. Richardson: level of scrutiny remained
uncertain, as there was no majority; the plurality argued
for strict scrutiny, stating that gender, like race, alienage,
or national origin, are inherently suspect; one of the
concurrences argued that the Court should wait for the
passage of the Equal Rights Amendment, which ended up
being 3 states short
3. Stanton v. Stanton: overturned a Utah law that required
parents to support their female children until 18, but male

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 children until 21, stating that the law was unconstitutional
under any test because it was based on old notions
about social roles
4. Craig v. Boren: overturned an OK law that allowed women
to buy 3.2% alcohol beer at 18, but men at 21, stating
that while traffic safety is an important government
objective, gender discrimination is not substantially
related to that objective
5. United States v. Virginia: applied intermediate scrutiny
(women were excluded from the VA Military Institute and
provided the VA Womens Institute for Leadership at Mary
Baldwin College as an alternative) and stated that there
must be an exceedingly persuasive justification for
gender classifications with the burden resting entirely on
the State and the justification must not rely on overbroad
generalizations about the different talents, capacities, or
preferences of males and females, emphasizing the
successful gender integration of the federal military
academies
6. Substantial relationship often considers the
a. Reliance on stereotypes and overbroad
generalizations
b. Use of gender as a proxy
c. Availability of gender-neutral alternatives
iii. But, when is gender classification discrimination?
1. Geduldig v. Aiello: upheld CAs disability insurance system
policy of excluding pregnancy-related disabilities but
including disabilities affecting only men and applied the
rational basis test (state has a legitimate interest in
maintaining the fiscal integrity of its program and making
choices in allocating its funds) because the program
divides recipients into two groups, pregnant women and
non-pregnant persons, both of which included women;
this was effectively overruled by the passage of the
Pregnancy Discrimination Act
2. Bray v. Alexandria Womens Health Clinic: invoked
Geduldig when evaluating is those blocking access to
abortion clinics were engaged in a form of gender
discrimination, stating that the two categories were
persons protesting and persons receiving abortions and
women were in both categories
iv. Gender classifications benefiting women
1. Laws based on role stereotypes are generally NOT OKAY
a. Stereotype of economically dependent women and
economically independent men
i. Orr v. Orr: overturned AL law that allowed
women, but not men, to receive alimony,
explaining that needy males could be helped
along with needy females with little if any
additional burden

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 ii. Weinberger v. Wiesenfeld: overturned a
provision of the Social Security Act that
allowed a widowed mother, but not a
widowed father, to receive benefits based on
the earning of the deceased spouse, stating
that the law was based on the stereotype
that male workers earnings are vital to the
support of their families, while the earnings
of female wage earners do not significantsly
contribute to their families support
iii. Califano v. Goldfarb: overturned a provision
in the Federal Old-Age, Survivors and
Disability Insurance Benefits program
whereby a woman automatically would
receive benefits based on the earnings of her
husband, but a man would receive such
benefits only if he could prove that he
received at least half of his support from his
wife, stating that the law presumes that
wives are usually dependent
iv. Wengler v. Druggists Mutual Insurance Co.:
overturned a state law that automatically
allowed widows benefits, but only allowed
widowers benefits if they proved that they
were dependent on their wives income or
were physically incapacitated
b. Stereotype about women and their roles in the
family and the economy
i. Mississippi University for Women v. Hogan:
applying intermediate scrutiny, the Court
declared unconstitutional a state nursing
school that was available only to women,
stating that here the classification was on
designed to remedy past discrimination, but
based on an occupational stereotype
ii. Michael M. v. Superior Court of Sonoma
County: upheld CAs statutory rape law that
made men alone criminally liable for the act
of sexual intercourse, by stating that the
legislature acts well within its authority when
it elects to punish only the participant who
suffers few of the consequences of his
conduct, unlike young females who have the
natural deterrence of pregnancy
iii. Rostker v. Goldberg: upheld male-only draft
registration, premised on the fact that
women, unlike men, are not eligible for
combat and that Congress and the president
had evidenced an intent to retain that policy
in the future

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 iv. These cases forced consideration of when
biological differences between men and
women justify gender discrimination
2. Gender classifications benefiting women as a remedy are
OKAY
a. Califano v. Webster: upheld a provision in the Social
Security Act that calculated benefits for women in a
more advantageous way than was used for men,
stating that the difference was not based on
stereotypes, but rather the permissible goal of
redressing our societys longstanding disparate
treatment of women
b. Thus, gender classification is okay when it operates
directly to compensate women for past economic
discrimination and the Court has yet to consider a
constitutional challenge to an affirmative action
program designed to benefit women, which would
likely include a similar analysis as race-based
affirmative action
3. Gender classifications benefiting women because of
biological differences are OKAY
a. Nguyen v. Immigration and Naturalization Service:
allowed a difference in INS rules favoring mothers
over fathers because of the governments interest
in being certainty that there is a biological
relationship between the parent and child and the
greater opportunity that mothers have in
establishing a relationship with their children (case
involved how children can become citizens when
born outside the U.S. to unmarried parents and one
of their parents is a citizen and one is not, with
greater requirements if the citizen parent if the
father)
b. Allowed gender classification based on biological
difference, but there remains an issue as to
whether these differences are real or social
constructs and whether they should matter
(Nguyen dissent)
d. Other types of Classification
i. Non-Marital Children Classification
1. Intermediate scrutiny standard
a. Clark v. Jeter: expressly stated that intermediate
scrutiny is used for discrimination based on
illegitimacy, justified by the unfairness of penalizing
children because their parents were not married,
and overturned a state law that required a
nonmarital child to establish paternity within 6
years in order to seek support from his father
2. Laws denying benefits to all nonmarital children

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 a. Court consistently found such laws as violating
equal protection
b. Levy v. Louisiana: overturned a state law that
prevented nonmarital children from suing under a
wrongful death statute for losses because of a
mothers death
c. Glona v. American Guarantee & Liability Insurance
Co.: overturned a state law that prevented parents
from suing for the wrongful death of their
nonmarital children
d. New Jersey Welfare Rights Organization v. Cahill:
overturned a state law that limited receipt of public
assistance to families with two married adults and a
child
e. Gomez v. Perez: overturned a TX law that created a
legal obligation for fathers to support their marital
children, but no similar duty with regard to
nonmarital children
f. Trimble v. Gordon: overturned a IL law that allowed
marital children to inherit from either parent who
died intestate, but nonmarital children from
inheriting only from their mothers
3. Laws that provide a benefit to some nonmarital children
while denying the benefit to other nonmarital children
a. Court applies intermediate scrutiny on a case-by-
case basis
b. Lalli v. Lalli: upheld a state law that provided that a
nonmarital child could inherit from his or her father
only if paternity was established during the fathers
lifetime, stating that the state had an important
interest in preventing fraud and that requiring
paternity to be established during the fathers
lifetime was substantially related to that objective
c. Labine v. Vincent: upheld a state law that denied
inheritance from a nonmarital father unless the
child had been formally acknowledged by the father
during the fathers life, accepting the states
argument that is the same as in Lalli
d. Mathews v. Lucas: upheld a provision of the Social
Security Act that allowed children to receive
survivors benefits only if they could establish both
paternity and that the father was providing
financial support (which presumed that all marital
children were dependent, but not all nonmarital
children were), finding that the law did not preclude
any child from receiving benefits and because it
allowed the government to reduce its
administrative burdens
e. Jiminez v. Weinberger: overturned a provision of the
Social Security Act that allowed intestate

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 inheritance of disability benefits by all martial
children and by nonmarital children who had been
legitimated, i.e. living with or supported by the
father, explaining that it would discriminate
between two sub-classes of afterborn illegitimates
without any basis for the distinction since the
potential for spurious claims is exactly the same as
to both subclasses
ii. Age Classifications
1. Rational basis test standard
a. Massachussetts Board of Retirement v. Murgia:
applied rational basis test, stating that even old
age does not define a discrete and insular group
in need of extraordinary protection from the
political process. Instead, it marks a stage that
each of us will reach if we live our normal span, to
uphold a state law that required police officers to
retire at 50, finding that the fitness for uniformed
work presumptively has diminished with age and is
thus rationally related to the States objective
b. Vance v. Bradley: upheld a federal law that
mandated retirement at 60 for participants in the
Foreign Service Retirement System, stating that the
federal government had a legitimate interest in
having a vigorous foreign service and that a
mandatory retirement age was rationally related to
that end
2. Both Murgia and Vance were significantly over- and under-
inclusive because each required retirement for many who
were still capable of performing competently and had no
effect on those younger who had already declined in
mental and physical reliability, but, again, the Court said
perfection is by no means required; the dissent in
Murgia also argues that the existing testing is adequate to
determine the fitness of an older officer
3. Although rational basis test makes it very difficult to
challenge age classifications under the Constitution, the
federal Age Discrimination in Employment Act prohibits
age discrimination and specifically outlaw mandatory
retirement ages
iii. Discrimination based on Disability
1. Rational basis test standard
a. City of Cleburne, Texas v. Cleburne Living Center,
Inc.: overturned a city ordinance that required a
special permit for the operation of a group home for
the mentally disabled, finding that the potential
harassment of occupants by junior high students,
its location on a 5oo hundred year old plain, and
the concern over the number who would live in the
home were not legitimate government purposes

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 b. Heller v. Doe: upheld a state law that allowed
mentally retarded individuals to be civilly
committed if there was clear and convincing
evidence justifying institutionalization, but required
that there be proof beyond a reasonable doubt
before an individual could be committed because of
mental illness by concluding that there were
reasonable distinctions between the mentally
retarded and the mentally ill
2. The Americans with Disabilities Act broadly prohibits
discrimination based on disability beyond what is covered
by the application of rational basis review
iv. Wealth Discrimination
1. Rational basis test standard
a. Although it appeared that the Court would use
heightened scrutiny (Griffin v. Illinois and Harper v.
Virginia Board of Elections), it has since held that
only rational basis review should be used for wealth
classifications
b. Dandridge v. Williams: upheld a law that put a cap
on welfare benefits to families regardless of their
size, stating that rational basis review was
appropriate because the law related to economics
and social welfare and accepting the states
interest in allocating scarce public benefits as
sufficient to justify the law
c. San Antonio School District v. Rodriguez: upheld a
TX system of relying heavily on local property taxes
to pay for education by rejecting the claim that the
poor should be a suspect class and finding that
there is no basis for assuming that the poorest
people are concentrated in the poorest districts and
that the lack of personal resources has not
occasioned an absolute deprivation of the desired
benefit
d. Maher v. Roe: rejected an argument that the
government violated equal protection when it
refused to fund abortions, even though it was
paying for childbirth and other medical care costs,
stating that poverty is not immutable and that most
discrimination against the poor is a result of the
effects of the law, rather than a product of
intentional discrimination
v. Sexual Orientation Classifications
1. Rational basis standard Goodridge v. Department of
Public Health: MA Supreme Court ruled that the state may
not deny the protections, benefits, and obligations
conferred by civil marriage to two individuals of the same
sex who wish to marry, applying rational basis test
standard and concluding that the governments interests

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 of providing a "favorable setting for procreation," ensuring
the optimal setting for child rearing, which the
department defines as "a two-parent family with one
parent of each sex," and preserving scarce State and
private financial resources did not serve a legitimate
public purpose
2. Strict scrutiny standard In re Marriage Cases: CA
Supreme Court ruled that the state laws limiting marriage
to opposite-sex couples violate the rights of same-sex
couples and may not be used to preclude them from
marriage, applying the strict scrutiny standard (because
the statutes in question properly must be understood as
classifying or discriminating on the basis of sexual
orientation, a characteristic that we conclude represents
like gender, race, and religion a constitutionally
suspect basis upon which to impose differential treatment
and the differential treatment at issue impinges upon a
same-sex couple's fundamental interest in having their
family relationship accorded the same respect and dignity
enjoyed by an opposite-sex couple) and concluding that
the exclusion of same-sex couples from the designation of
marriage clearly is not necessary in order to afford full
protection to all of the rights and benefits that currently
are enjoyed by married opposite-sex couples
3. Intermediate scrutiny standard Kerrigan v.
Commissioner of Public Health: CT Supreme Court ruled
that the states statutory prohibition against same sex
marriage violates their rights to substantive due process
and equal protection, applying the intermediate scrutiny
standard of review (because the history of pernicious
discrimination faced by gay men and lesbians and the
institution of marriage carries with it a status and
significance that the newly created classification of civil
unions does not embody, the segregation of heterosexual
and homosexual couples into separate institutions
constitutes a cognizable harm AND because the state
scheme discriminates on the basis of sexual orientation
and sexual orientation is semi-suspect class just like
gender) and concluding that the state failed to provide
sufficient justification for excluding same sex couples from
the institution of marriage
4. Varnum v. Brien: IA Supreme Court overturned a state
statute that defined marriage only as a union between a
man and a woman, applying intermediate scrutiny to find
that the exclusion of gay and lesbian people from the
institution of civil marriage does not substantially further
any important governmental objective
IV. Fundamental Rights (see Con Law I)
a. Equal protection clause is applied for fundamental rights
b. Right to vote

16
 i. Strict scrutiny standard
1. For restrictions such as poll taxes, property ownership
requirements, durational residency requirements, literacy
tests
2. For vote dilution, i.e. malapportionment
ii. Exception: Salyer Land Co. v. Tulare Lake Basin Water Storage
District and Ball v. James where the Court applied rational basis
test standard to allow property ownership requirement for voting
in a water district election

Freedom of Expression
I. Introduction
a. Although the 1st amendment is written in absolute language that
Congress shall make no law, the Court has never accepted the view
that it prohibits all government regulation of expression; as such, the
Court inevitably must make value choices as to what speech is
protected, under what circumstances, and when and how the
government may regulate
b. Theories of Free Speech
i. Self-governance
ii. Discovering truth
iii. Advancing autonomy
iv. Promoting Tolerance
II. Methodology
a. Distinction between Content-Based and Content-Neutral Laws
i. Importance
1. Turner Broadcasting System, Inc. v. Federal
Communications Commission: established the general
rule that content-based restrictions on speech must meet
strict scrutiny, while content-neutral regulation only need
meet intermediate scrutiny
2. Laws of this sort pose the inherent risk that the
Government seeks not to advance a legitimate regulatory
goal, but to suppress unpopular ideas or information or to
manipulate the public debate through coercion rather
than persuasion
3. Hence, the Court endorsed a two-tier system of review
a. Content-based generally has a strict scrutiny
review
b. Content-neutral generally has an alternate
intermediate scrutiny review
ii. Determining whether a law is content-based
1. Viewpoint neutral: government cannot regulate speech
based on the ideology of the message
a. Boos v. Berry: overturned a D.C. ordinance that
prohibited the display of signs critical of a foreign
government within 500 feet of that governments
embassy, as it drew a distinction among speech
based on the viewpoint expressed

17
 2. Subject-matter neutral: government cannot regulate
speech based on the topic of the speech
a. Carey v. Brown: overturned a Chicago ordinance
prohibiting all picketing in residential
neighborhoods unless it was labor picketing
connected to a place of employment, as the kind of
speech was being regulated
3. Republican Party of Minnesota v. White: overturned a MN
law that prohibited candidates for elected judicial office
from making statements about disputed legal or political
issues, stating that the content-based restriction failed to
meet strict scrutiny, rejecting the argument that such
statements would undermine judicial impartiality
iii. Applying the distinction
1. Does a permissible purpose for a law prevent it from
being deemed content-based, even if a content restriction
is on the face of the law?
a. City of Renton v. Playtime Theaters, Inc.: treated
the law (zoning ordinance prohibited adult motion
picture theaters from locating within 1000 feet of
any residential zone, single or multifamily dwelling,
church, park or school) as content neutral because
it said that the law was motivated by a desire to
control the secondary effects of adult movie
theaters, such as crime, and not to restrict the
speech
b. Renton adds the question of whether a law is
justified by a sufficient purpose to the question of
whether a law is content-based or content-neutral
c. The Court has been inconsistent in applying Renton
i. In Boos, the Court distinguished Renton
because the ordinance was justified only be
reference to the content of the speech
ii. In City of Cincinnati v. Discovery Network,
the Court articulates that there are no
secondary effects attributable tonewsracks
[containing commercial handbills] that
distinguish them from the newsracks
Cincinnati permits to remain on its sidewalks
iii. In contrast, in City of Erie v. Paps AM, the
Court concluded that the citys goal of
preventing the secondary effects of nude
dancing were sufficient to make the law
content-neutral
2. When can the government make choices based on the
content of the speech?
a. In certain situations, this is inevitable, but the
government must still remain viewpoint neutral
b. National Endowment for the Arts v. Finley: statute
was amended in 1990 to provide that the NEA

18
 should take into consideration general standards
of decency and respect for the diverse beliefs and
values of the American public; the Court states
that any content-based considerations that may be
taken into account in the grant-making process are
of the nature of arts funding and that the legislation
was aimed at reforming procedures rather than
precluding speech
c. United States v. American Library Association, Inc.:
upheld a federal law requiring libraries receiving
federal funds to install filters to block sexually
explicit material, stressing that libraries need not
buy all materials or allow access to all materials on
the Internet and emphasizing that under the law,
patrons may request librarians to lift filters
b. Vagueness/Overbreadth: facial challenges
i. Vagueness: a reasonable person cannot tell what speech is
prohibited and what speech is permitted
1. Coates v. City of Cincinnati: Cincinnati ordinance which
made it criminal for three or more persons to assemble
on any of the sidewalksand there conduct themselves in
a manner annoying to persons passing by was found
unconstitutionally vague because it subjects the exercise
of the right of assembly to an unascertainable standard
and unconstitutionally broad because it authorizes the
punishment of constitutionally protected conduct
2. Baggett v. Bullitt: overturned a states loyalty oath that
prevented any subversive person from being employed
in the state and required a person to swear that he was
not such an individual or a part of any subversive
organization because the ambiguities inherent in the term
subversive and in the language of the statute gave
individuals little guidance as to what speech and
associational activities were proscribed
3. Additionally, unduly vague laws violate due process
whether or not speech is regulated
ii. Overbreadth: a law regulates substantially more speech than the
Constitution allows to be regulated and a person to whom the
law constitutionally can be applied can argue that it would be
unconstitutional as applied to others
1. Schad v. Borough of Mount Ephraim: an adult bookstore
challenged a city ordinance prohibited all live
entertainment because the law prohibited much more
than the nude dancers at the bookstore
2. Thus, there are two major aspects to the overbreadth
doctrine:
a. A law must restrict significantly more speech than
the Constitution allows to be controlled
i. Broadrick v. Oklahoma: upheld an OK law
that prohibited political activities by

19
 government employees because it was not
substantially overbroad but that particular
applications of the law could be declared
unconstitutional in future cases
ii. City Council v. Taxpayers for Vincent: upheld
a municipal ordinance that prohibited the
posting of sign on public property,
emphasizing that there must be a realistic
danger that the statute itself will significantly
compromise recognized 1st amendment
protections of parties not before the Court
for it to be facially challenged on
overbreadth grounds (substantial
overbreadth)
iii. Houston v. Hill: overturned an ordinance that
made it unlawful to interrupt police officers
in the performance of their duties, stating
that the law criminalizes a substantial
amount of constitutionally protected speech
and accords the police unconstitutional
discretion in enforcement
iv. New York v. Ferber: upheld a state law
prohibiting child pornography, although it
acknowledged that the law could be applied
to material with serious literary, scientific, or
educational value, because these
applications would not amount to more than
a tiny fraction of the materials within the
statutes reach
v. So, sometimes the Court will uphold
substantially overbroad laws because
applications could be dealt with on a case-
by-case basis, rather than by declaring the
entire law unconstitutional
b. A person to whom the law constitutionally may be
applied can argue that it would be unconstitutional
as applied to others (an exception to the general
standing principle)
i. Secretary of State v. J. H. Munson Co.:
granted standing to a professional fundraiser
whose clients were not charities party to the
lawsuit brought against a MD statute
prohibiting charitable organizations from
soliciting funds unless at least 75% of their
revenue was used for charitable purposes,
articulating that the overbreadth doctrine is
strong medicine because it permits
individuals standing to raise the claims of
others not before the Court, which is
necessary because persons whose

20
 expression is constitutionally protected may
well refrain from exercising their rights for
fear of criminal sanctions provided by a
statute susceptible of application to
protected expression
ii. This rationale explains why overbreadth does
not apply to commercial speech (see Village
of Hoffman Estates v. Flipside, Hoffman
Estates, Inc.)
iii. Because the doctrine is perceived as strong
medicine the Court avoids invalidating laws
by allowing courts to construe statutes
narrowly and thus avoid overbreadth
1. Osborne v. Ohio: upheld an OH law
prohibiting private possession of child
pornography and outlawing possession
of nude photographs because the OH
Supreme Court adopted a narrowing
construction so that it avoided
penalizing persons for viewing or
possessing innocuous photographs of
naked children
2. Gooding v. Wilson: overturned a GA
law making it a crime for any person
who uses opprobrious words or
abusive language tending to cause a
breach of the peace, stating that it
found no limiting construction by GA
courts to apply it only to speech not
protected by the 1st and 14th
amendments
iii. Relationship between vagueness and overbreadth
1. Laws are often challenged under both doctrines, but they
are best understood as overlapping, not identical
2. Board of Airport Commissioners of the City of Los Angeles
v. Jews for Jesus, Inc.: overturned an ordinance prohibiting
any person to engage in 1st amendment activities within
the Central Terminal area at LAX, finding that the law was
impermissibly overbroad because it prohibited all
protected expression, but not vague
3. Whereas in Coates, the ordinance was vague because it
subjects the exercise of the right of assembly to an
unascertainable standard AND overbroad because it
authorizes the punishment of constitutionally protected
conduct
III. Types of Unprotected and Less Protected Speech
a. Introduction
i. These categories are based on the subject matter of the speech
and thus represent an exception to the usual rule that content-
based regulation must meet strict scrutiny

21
 ii. Until recently, the conventional view was that laws in these area
would be upheld so long as they met the rational basis test
b. Incitement of Illegal Activity (speech advocating illegal acts or the
overthrow of the government)
i. Poses a basic value questions of how should society balance its
need for social order against its desire to protect freedom of
speech
ii. The Clear and Present Danger test
1. Schenck v. United States: ruled that the circulation of a
leaflet advocating repealing the draft law was indeed
violative of the 13th amendment, stating that although in
many place s and in ordinary times the speech would be
protected, the wartime circumstances were crucial and
that the question in every case is whether the words
used are used in such circumstances and are of such a
nature as to create a clear and present danger that they
will bring about the substantive evils that Congress has a
right to prevent
2. Frohwerk v. United States: affirmed convictions, under the
1917 Act, of two individuals who published a German
language newspaper criticizing the war, acknowledging
that while there was no evidence that the articles had any
adverse effect on the war effort, but that this was relied
upon by those who sent the paper out
3. Debs v. United States: affirmed conviction of Socialist
Party leader who advocated socialism and mildly criticized
the draft in a speech, stating that the speech was not
protected if one purpose of the speech, whether
incidental or not does not matter, was to opposethis
war, and if, in all the circumstances, that would be its
probably effect
4. Abrams v. United States: affirmed the convictions of a
group of Russian immigrants who circulated leaflets
objecting to America sending troops to Eastern Europe
after the Russian Revolution, stating that they were
convicted of encouraging resistance and conspiracy to
urge curtailment of the production of war materials;
Holmess dissent articulated the marketplace of ideas
metaphor for the 1st amendments, stating that it is only
the present danger of immediate evil or an intent to bring
it that warrants Congress in setting a limit to the
expression of opinion and that the power undoubtedly is
great in time of war than in time of peace but that
Abrams did not pose such a danger
5. So, the clear and danger test poses three requirements:
a. Likelihood of
b. Imminent
c. Significant harm
iii. The Reasonableness approach

22
 1. During the 1920s and 30s, the Court appeared to use the
reasonableness approach; it upheld laws and their
applications so long as the governments law and
prosecution were reasonable
2. Gitlow v. New York: affirmed a conviction of an individual
for published the Left Wing Manifesto and violating the
NY statute prohibiting advocating overthrowing and
overturning organized government by force, violence, and
unlawful means, stating that by enacting the statute, the
state legislature had determined that such utterances
were so inimical to the general welfare and involve such
danger of substantive evil that they may be penalized in
the exercise of political power; Holmes dissent urged the
use of the clear and present danger test
3. Whitney v. California: affirmed the conviction of an
individual for attending a meeting to organize a branch of
the Communist Labor Party again proclaiming the need
for deference to the legislature and stating that a state in
the exercise of its police power may punish those who
abuse freedom of speech to involve danger to the public
peace and security; Brandeis and Holmes concurrence
again argued for the clear and present danger approach
4. The Court did overturn some convictions on the rationale
that they were unreasonable (Fiske v. Kansas, where there
were no declarations by the defendant, or his
organization, urging unlawful acts, and DeJonge v.
Oregon, where no one at the meeting advocated illegal
acts or the overthrow of the government)
iv. The Risk Formula approach
1. Dennis v. United States: articulated, in a plurality decision,
that the appropriate test was the clear and present
danger approach and that in each case [courts] must ask
whether the gravity of the evil, discounted by its
improbability, justifies such invasion of free speech as is
necessary to avoid the danger, stating that the teaching
of four books written by Stalin, Marx and Engels, and
Lenin was a great enough harm (instead of probability and
imminence) to warrant the limitation of speech;
concurrences argued the other two tests; Black and
Douglass dissents each emphasized that the convictions
were solely for engaging in speech
2. Yates v. United States: overturned the convictions of
several individuals for conspiracy to violate the Smith Act,
distinguishing Dennis by stating that there was a crucial
distinction between advocacy of abstract doctrine and
advocacy directed at promoting unlawful action
3. Scales v. United States: upheld a conviction for being a
member of an organization that advocates the overthrow
of the government, stressing that there must be proof
that an individual actively affiliated with the group,

23
 knowing of its illegal objectives, and with the specific
intent of furthering those goals
4. Noto v. United States: reversed a conviction under the
Smith Act for conspiracy because of inadequate evidence
to meet these requirements
v. The Brandenburg Test
1. By the 1960s, the Court appeared to be much more
protective of speech (Bond v. Floyd, where Court held that
an assembly seat could not be refused because of Bonds
support for a statement strongly critical of the Vietnam
War and the draft, and Watts v. United States, where the
Court reversed conviction of a man for violating the law
that made it illegal to threaten the President, stating that
Wattss statement was a political hyperbole and not a real
theat)
2. Brandenburg v. Ohio: overturned a conviction of a Ku Klux
Klan leader based on a film of a rally, which included
racist and anti-Semitic speech and a number of firearms,
stating that Dennis and the subsequent cases do not
permit a State to forbid or proscribe advocacy of the use
of force or of law violation except where such advocacy is
directed to inciting or producing imminent lawless action
and is likely to incite or produce such action
3. So, the Brandenburg test poses three requirements:
a. Imminent harm
b. A likelihood of producing illegal action
c. An intent to cause imminent illegality
4. Hess v. Indiana: overturned the conviction of a man for
disorderly conduct who declared Well take the fucking
street later after the police had cleared a demonstration,
stating that there was no evidence that his words were
intended to produce, and likely to produce, imminent
disorder
5. NAACP v. Claiborne Hardware: overturned a judgment
against the NAACP for a boycott of white-owned
businesses that it alleged engaged in racial
discrimination, explaining that the emotionally charged
rhetoric of Charles Evers speeches did not transcend the
bounds of protected speech set forth in Brandenburg
6. However, the Court has still held that there is no 1 st
amendment protection for a true threat, but theres a
circuit split as to the definition of a true threat; some
say it is determined from the perspective of the listener
(9th), while others have said that it is from the perspective
of the reasonable speaker (2nd)
c. Fighting Words (speech directed at another and likely to provoke a
violent response)
i. Chaplinsky v. New Hampshire: upheld a mans conviction for
giving a speech denouncing other religions as a racket, stating
that the right to free speech is not absolute at all times and

24
 certain classes, including insulting or fighting words, those which
by their very utterance inflict injury or tend to incite an
immediate breach of the peace, are not protected by the 1 st
amendment and that such utterances are no essential part of
any exposition of ideas and any benefit is clearly outweighed
by the social interest in order and morality
ii. Thus, Chaplinsky seems to recognize two situations where
speech constituted fighting words:
1. Where it is likely to case a violent response against the
speaker
2. Where it is an insult likely to inflict immediate emotional
harm
iii. But, the Court has never upheld a fighting words conviction
since, using three techniques to overturn them
1. Narrowing the interpretation of the fighting words doctrine
a. Street v. New York: reversed the conviction of a
man who burned an American flag after learning
that James Meredith had been shot, stating that
while some might have found the speech inherently
inflammatory, it was not fighting words, which are
only a small class of words
b. Cohen v. California: reversed the conviction of a
man who had disturbed the peace for having in a
courthouse a jacket that had on its back the words,
Fuck the draft, holding that unprotected fighting
words only occur if the speech is directed to a
specific person and likely to provoke violent
response and elaborating that it was clearly not
directed to the person of the hearer and that no
individual actually or likely to be present could
reasonably have regarded the words on appellants
jacket as a direct personal insult
c. Texas v. Johnson: again held that flag burning was
constitutionally protected, as it is not directed at a
particular person and no reasonable onlooker would
take it as a direct personal insult or an invitation to
exchange fisticuffs
2. Finding laws to be unconstitutionally vague or overbroad
a. Gooding v. Wilson: (see analysis under
vagueness/overbreadth)
b. Rosenfeld v. New Jersey, Lewis v. City of New
Orleans, and Brown v. Oklahoma: all involved the
angry use of profanity in a manner likely to provoke
an audience; Court applied Gooding and overturned
convictions, making it clear that speech is
protected even if it is uttered in anger, filled with
profanities, and likely to anger the audience
c. These cases indicate that a fighting words law will
be upheld only if it is narrowly tailored to apply just

25
 to speech that is not protected by the 1st
amendment
3. Finding laws to be impermissible content-based
restrictions of speech
a. R.A.V. v. City of St. Paul, Minnesota:
i. Ordinance prohibited placing on public or
private property symbols, objects,
characterizations, or graffiti, including, but
not limited to, a burning cross or Nazi
swastika, which one knows or has reasonable
ground to know arouses anger, alarm or
resentment in others on the basis of race,
color, creed, religion, or gender
ii. MN Supreme Court narrowly constructed it so
that it applied only to fighting words or
incitement not protected by the 1st
amendment
iii. Court stated that there was not an absolute
prohibition of content-based discrimination
within categories of unprotected speech;
such distinctions will have to meet strict
scrutiny, subject to two exceptions:
1. If it directly advances the reason why
the category of speech is unprotected,
i.e. an obscenity law could prohibit the
most sexually explicit material without
having to ban everything that is
obscene
2. If it is directed at remedying
secondary effects of speech and is
justified without respect to content
iv. Thus, the Court invalidated the ordinance
because it drew a distinction among
expressions of hate; it prohibited hate
speech based on race, religion, or gender,
but not based on political affiliation or sexual
orientation
v. Concurrences also argued overbreadth or
that the government should have latitude to
draw distinctions within categories of
unprotected speech
b. R.A.V. can be appraised on many levels
i. Fighting words law will be upheld only if it
does not draw content-based distinctions
among types of speech (very difficult to
meet, as it would likely then be invalid for
vagueness or overbreadth)
ii. There is a strong presumption against
content-based discrimination within
categories of unprotected speech

26
d. Hostile Audience
i. In some cases, the Court applied the clear and present danger
test in dealing with the issue of when the government may
punish individuals for a speech that provokes a hostile audience
reaction
1. Terminiello v. Chicago: overturned a conviction for
disturbing the peace because it was not shown that the
speech, in which Terminiello attacked his opponents as
slimy scum, snakes, and bedbugs, posed a clear
and present danger of lawlessness
2. Cantwell v. Connecticut: overturned a conviction for
disturbing the peace because playing a phonograph
record on a street corned that attacked the Roman
Catholic religion did not pose such clear and present
menace to public peace and order
ii. Feiner v. New York: an individual was convicted for a speech that
he gave that sharply criticized the president and local political
officials for their inadequate record on civil rights; Fiener was
arrested after refusing polices request to leave when the crowd
seemed angered by the speech
1. Majority: upheld the conviction for disturbing the peace,
applying the clear and present danger test and concluding
that here the speaker passes the bounds of argument or
persuasion and undertakes incitement to riot, rendering
the police powerless to prevent a breach of the peace
2. Dissent: rejected the opinion that the police had no
obligation to protect petitioners right to talk and that, in
the name of preserving order, must first make all
reasonable efforts to protect a lawful public speaker
iii. Edwards v. South Carolina: overturned a conviction for civil
rights protestors ho had staged a march to the SC capitol,
emphasizing that police protectionwas at all times sufficient
to meet any foreseeable possibility of disorder and
distinguishing Feiner based on the absence on any violence or
threats of violence
iv. Cox v. Louisiana: overturned a conviction of an individual who
gave a speech objecting to the racial segregation of lunch
counters and urged a sit-in, which some found inflammatory, on
the grounds that the police had the ability to control the crowd
v. Gregory v. City of Chicago: overturned convictions for disturbing
the peace for a group of civil rights demonstrators who had been
arrested when an angry group threatened the marchers because
the law did not limit convictions to instances where there was a
threat of imminent violence, the police have made all
reasonable efforts to protect the demonstrators, and the police
have requested that the demonstration be stopped
e. Racist Speech
i. Beauharnais v. Illinois: upheld a state law that prohibited any
publication that portrayed depravity, criminality, unchastity, or
lack of virtue of a class of citizens, of any race, color, creed, or

27
 religion [which exposes such citizens] to contempt, derision, or
obloquy or which is productive of breach of the peace or riots,
stating that just as a state could punish defamation, so may a
state punish the same utterance directed at a defined group
(group libel)
1. Based on the assumption that defamation liability is
unlimited by the 1st amendment, which has since been
rejected by New York Time v. Sullivan
2. Additionally, R.A.V. indicates that expression of hate is not
a category of speech entirely outside protection
ii. Virginia v. Black: VA law prohibited cross burning with an intent
to intimidate a person or group of persons and provided that an
act of cross burning was prima facie evidence of an intent to
intimidate a person or a group of persons; Court held that:
1. Government cannot prohibit all cross burning because its
a symbolic expression and the government cannot ban
symbols just because they are powerful and offensive;
dissent argued that cross burning is conduct, not speech,
and is inherently threatening and intimidating
2. Cross burning done with the intent to threaten or
intimidate that constitutes a true threat, which is a
statement when the speaker means to communicate a
serious intent to commit an act of unlawful violence to a
particular individual or group of individuals, but need not
actually intend to carry out the threat is not protected
by the 1st amendment;
3. There must be proof in the individual case that the speech
was a true threat
f. Obscenity
i. Unprotected by the 1st amendment
1. Roth v. United States: held that obscene material, which is
material that deals with sex in a manner appealing to the
prurient interest, is a category of unprotected speech
because it is utterly without redeeming social importance
2. Paris Adult Theatre I v. Slaton: reaffirmed Roth and
elaborated that a community should be able to determine
its moral environment and that obscenity causes
antisocial behavior, like crime
ii. But what is considered obscene?
1. Miller v. California: reaffirmed Roth and formulated the
test for obscenity
a. The material must appeal to the prurient interest
(that which excites lustful or lascivious thoughts)
for the average person, applying contemporary
community standards
b. The material must be patently offensive under the
law prohibiting obscenity, applying community
standards
c. The material must, taken as a whole, lack serious
redeeming artistic, literary, political, or scientific

28
 value, applying national standards of whether a
reasonable person would find such value in the
material
g. Child Pornography
i. New York v. Ferber: upheld the conviction of a man who sold two
films showing young boys masturbating, stating that the
government may prohibit the exhibition, sale, or distribution of
child pornography even if it does not meet the test for obscenity
ii. United States v. Williams: upheld the provision in the PROTECT
Act that proscribed the pandering of material that is believed to
be, or claimed to be, illegal child pornography, stating that the
statute was not overbroad and noting that illegal actions are
excluded from 1st amendment protections and that child
pornography is an unprotected class of speech
h. Non-Obscene Sexual Expression
i. Protected but Low-Value Sexual Speech
1. Zoning ordinances
a. Young v. American Mini Theatres, Inc.: upheld a
citys ordinance that limited the number of adult
theaters that could be on any block and that
prevented such enterprises from being in
residential areas, stating that the sexually explicit
material should be regarded as low value speech
and thus more susceptible to government
regulation and that the State may legitimately use
the content of these materials as the basis for
placing them in a different classification from other
motion pictures
b. City of Renton v. Playtime Theatres, Inc.: applying
Young, upheld a zoning ordinance that excluded
adult motion picture theaters from being within
1000 feet of any residential zone, church, park, or
school, effectively excluding such theaters from
about 95% of the land in the city
c. City of Los Angeles v. Alameda Book, Inc.: upheld
an ordinance that prohibits the establishment or
maintenance of more than one adult entertainment
business in the same building, structure, or portion
thereof, stating that the city could rely on a 1977
study showing that a concentration of adult
businesses increases crime
2. Nude dancing
a. Barnes v. Glen Theatre, Inc.: ruled that an IN
statute that prohibited public dancing could be
used to require that female dancers must, at a
minimum, wear pasties and a G-string when
they dance, in the plurality noting that nude
dancing is expressive conduct within the outer
perimeters of the 1st amendment and holding that
the prohibition of nude dancing served the goal of

29
 protecting societal order and morality;
concurrences argued that conduct is not the
subject of the 1st amendment or focused on the
secondary effects of nude dancing; the dissent
emphasized that stopping nude dancing was
suppressing a message
b. City of Erie v. Paps AM: reaffirmed Barnes, but
based on the pluralitys reasoning that the city was
justified in prohibiting nude dancing so as to stop
the undesirable secondary effect, such as crime;
dissent stressed the absence of any proof that nude
dancing causes the secondary effects
c. Thus, the government may prohibit nude dancing
and may rely on the experience of other cities and
their own observations to reasonably conclude that
nude dancing causes secondary effects
3. The Court has never defined the content of this category
of low-value sexually-oriented speech, but it has made
clear that nudity alone is not enough to place speech in
this category
ii. Government Techniques for Controlling Obscenity and Child
Pornography
1. Stanley v. Georgia: held that the mere private possession
of obscene matter cannot constitutionally be made a
crime, emphasizing that a person in his own home has
the right to choose what to read of watch
2. U.S. v. Reidel: held that Stanley did not protect the right
to receive obscene materials
3. Osborne v. Ohio: held that the government may prohibit
and punish the private possession of child pornography,
emphasizing that the government has an important
interest in attempting to dry up the market for child
pornography so as to protect children and therefore
punish even private possession
4. Thus, the government can prohibit the sale, distribution,
and exhibition of obscene materials even to willing
recipients, but cannot prohibit private possession, with
the exception of child pornography
iii. Profanity and Indecent Speech
1. Cohen v. California: reversed the conviction of a man who
had disturbed the peace for having in a courthouse a
jacket that had on its back the words, Fuck the draft,
stating that the government may not prohibit or punish
speech simply because others might find it offensive
2. However, there are some media-based exceptions where
the government can prohibit profane and indecent
speech
a. Broadcast Media
i. FCC v. Pacifica Foundation: upheld the ability
of the FCC to prohibit and punish indecent

30
 language over the television and radio
because the broadcast media are uniquely
pervasive and intrusive into the home and
that warnings were insufficient because
people might tune in during the middle of a
broadcast
ii. FCC v. Fox Television Stations: pending case,
No. 07-582
iii. FCC Broadcast Restrictions:
1. Indecency is language or material
that, in context, depicts of describes,
in terms patently offensive as
measured by contemporary
community standards for the
broadcast medium, sexual or
excretory organs or activities
2. Profanity includes language so
grossly offensive to members of the
public who actually hear it as to
amount to a nuisance
3. Indecent language and profanity is
prohibited from 6am to 10pm
b. Cable Television
i. Denver Area Educational
Telecommunications Consortium, Inc. v. FCC
1. Upheld the first provision of the Cable
Television Consumer Protection and
Competition Act of 1992, which
allowed cable systems to refuse to
carry sexually explicit broadcasting,
because it serves an extremely
important justification the need to
protect children from exposure to
patently offensive sex-related material
2. Overturned the second part, which
required that sexual material be
segregated and available only on
request, stating that less restrictive
alternatives could protect children,
such as a system where parents could
receive blocking by telephone or
employ lockboxes
3. Overturned the third provision, which
permitted cable systems to prohibit
sexually explicit material over public
access channels, finding that there
was not proof of a compelling need,
nationally, to protect children from
significantly harmful material on
there channels

31
 ii. United States v. Playboy Entertainment
Group: applied strict scrutiny to declare
unconstitutional a provision of the Cable Act
that had a time blocking regulation on sexual
speech, emphasizing that the law is a
content-based restriction on speech and that
the government had a less restrictive
alternative to achieve these goals, such as
signal control and selective blocking by
subscribers
c. Telephones
i. Sable Communications v. FCC: overturned a
federal statute prohibiting obscene or
indecent telephone conversations, i.e. dial-
a-porn, noting that there in no captive
audience problem here; callers will generally
not be unwilling listeners
d. Internet
i. Reno v. ACLU: invalidated certain provisions
of the Communications Decency Act of 1996
which made it a federal crime to transmit
obscene or indecent material over the
internet, stressing the vagueness of the
statute, distinguishing it from Pacifica
because this Act applied at all hours, and
recognizing that, while the government has a
compelling interest in protecting children
from exposure to sexual material, it cannot
restrict speech available to adults for this
end
ii. Ashcroft v. ACLU: affirmed and concluded
that the Child Online Protection Act would be
declared unconstitutional, stating that the
law was a content-based restriction and thus
must meet strict scrutiny and this law was
not the least restrictive alternative because
filters were more likely to be effective than
the statute
3. Underlying issues
a. Should there be a category of indecent speech?
Some cases emphasize the vagueness of
indecent, others seem untroubled by it
b. What level of scrutiny should be used in evaluating
government restrictions? Most cases do not
articulate a standard of review, while some use
strict scrutiny on the grounds that the laws are
content-based restrictions
c. Should the Court analyze each medium separately,
especially as people today often receive all of these
media through a single source?

32
i. Commercial Speech
i. Constitutional protection
1. Initially, the Court refused to protect commercial speech
(Valentine v. Chrestensen and Breard v. City of
Alexandria)
2. Bigelow v. Virginia: declared unconstitutional a state law
that made it a crime to encourage or prompt the
procuring of abortions, holding that just because a
particular advertisement had commercial aspects or
reflected the advertisers commercial interests did not
negate all 1st amendment guarantees
3. Virginia State Board of Pharmacy v. Virginia Citizens
Consumer Council, Inc.: declared unconstitutional a VA
law that prohibited pharmacists from advertising the
prices of prescription drugs, holding that speech that
does no more than propose a commercial transaction is
protected and that the economic interests of the speaker
should not matter, nor should it matter that the speech is
factual rather than opinions or ideas, but that advertising
illegal activities or false and deceptive advertising would
not be protected
4. Critics argue that the expression is not worthy of
protection because it does not directly concern the
political process and self-government
ii. What is commercial speech?
1. Bolger v. Youngs Drug Products: held that brochures were
a form of commercial speech, stating that commercial
speech has three characteristics
a. It is an advertisement of some sort
b. It refers to a specific product
c. The speaker has an economic motivation for the
speech
2. Central Hudson Gas v. Public Service Commission: the
state prohibited an electrical utility from advertising
because of the need for conservation of fuels and because
the utility had a monopoly and therefore didnt need to
advertise to succeed relative to competitors; Court
declared that the Constitution accords a lesser protection
to commercial speech than to other constitutionally
guaranteed expression, articulating a four-part analysis
for analyzing government regulation of commercial
speech:
a. At least must concern lawful activity and not be
misleading
b. Have a substantial government interest
c. The regulation directly advances the governmental
interest asserted
d. Not be more extensive than is necessary to serve
that interest (Board of Trustees of the State

33
 University of New York v. Fox replaced this least
restrictive means test with narrowly tailored)
3. The government has the burden of proving that the
restriction is justified
iii. What commercial speech is not protected?
1. Advertising of Illegal Activities
a. Not protected by the 1st amendment, without
needing to meet the test for incitement
b. Pittsburgh Press Co. v. Pittsburgh Commission on
Human Relations: upheld a decision that a
newspaper violated a citys ordinance by placing
help-wanted advertisements in columns captions
Jobs-Male Interest, Jobs-Female Interest, and
Male-Female, emphasizing that discrimination is
illegal commercial activity
2. False and Deceptive Advertising
a. Unprotected within the realm of commercial
speech, but erroneous statements are inevitable in
free debate and it must be protected if the
freedoms of expression are to have the breathing
space that they need to survive (New York Times v.
Sullivan)
3. Advertising that Inherently Risks Deception
a. Laws that prohibit professional from advertising or
practicing under trade names
i. Friedman v. Rogers: upheld a state law that
prohibited optometrists from advertising and
practicing under trade names, concluding
that trade names are nothing more than
commercial speech and that its a significant
possibility that they will be used to mislead
the public
b. Restrictions on the ability of professional to solicit
prospective clients
i. Solicitation by attorneys
1. The government may not prohibit
attorneys from engaging in truthful,
non-deceptive advertising of their
services
2. BUT, they may prohibit attorney in-
person solicitation of prospective
clients for profit because such speech
inherently risks becoming deceptive
and thus even truthful solicitations can
be forbidden when they are conducted
in person and where the attorney
would profit from the representation
(Ohralik v. Ohio State Bar Association,
In re Primus, Shapero v. Kentucky Bar
Association)

34
 3. Conversely, solicitation where the
attorney would not profit directly from
the client or solicitation by mail is
generally protected
4. Cal State Bar Rule 1-400
ii. Solicitation by accountants
1. The government may not prohibit
accountants from engaging in in-
person solicitation of clients for profit
because, unlike an attorney who is
professionally trained in the art of
persuasion, a CPAs training
emphasizes independence and
objectivity, not advocacy (Edenfirled v.
Fane, distinguishing Ohralik)
j. Symbolic Speech Expressive Conduct
i. When is conduct communicative?
1. Spence v. Washington: reversed the conviction of an
individual for flag desecration, who taped a peace sign on
an American flag after the killing of students at Kent
State, stating that it was a pointed expression of anguish
about the then-current domestic and foreign affairs of his
government; established a test for when conduct should
be regarded as communicative
a. Intent to convey a particularized message
b. There is a substantial likelihood that the message
would be understood by those receiving it
ii. When may the government regulate conduct that
communicates?
1. United States v. OBrien: upheld a federal law making it a
crime to knowingly destroy or knowingly mutilate
draft cards, identifying several justifications, including
that requiring the presence of draft cards facilitates
emergency military mobilization, aids communication with
a persons draft board, and reminds individuals to notify
their draft board of any changes, and stating that the
motive to prevent political protest was irrelevant;
formulated a test for evaluating the constitutional
protection for conduct that communicates
a. Within the constitutional power of the government
b. Furthers an important or substantial government
interest
c. The governmental interest is unrelated to the
suppression of free expression
d. The incidental restriction on 1st amendment
freedoms is no greater that essential to the
furtherance of the interest
2. Nude dancing
a. In Barnes (discussed above), the Court
characterized nude dancing as conduct that

35
 communicates and expressly applied OBrien,
finding that it is within a states police power to
prohibit public nudity, that there is an important
interest unrelated to suppression of the message
because of the states interest in morality, and that
the impact on communication was no greater than
necessary because the dancers could still express
their message (with clothes); this is troubling
because the states moral justification was not
really unrelated to the suppression of free
expression
b. The Court also reaffirmed the power of local
governments to ban nude dancing in Erie
(discussed above), but on different grounds
3. Flag desecration
a. Texas v. Johnson: overturned a state law prohibiting
any person to deface, damage, or otherwise
mistreat a flag in a way that the actor knows will
seriously offend one or more persons likely to
observe or discover his action; here, a man was
arrested for burning a flag as part of a protest at
the RNC; the Court emphasized that the laws
purpose was to keep the flag from being used to
communicate protest or dissent and that the
government may not prohibit the expression of an
idea simply because it finds the idea itself offensive
or disagreeable; dissent argued that whatever
message was transmitted could have been
conveyed in a dozen different ways
b. To avoid any amendments to the Constitution to
prohibit flag burning, Congress adopted the Flag
Protection Act of 1989 that made it a crime to
knowingly mutilate, deface, defile, burn, or trample
upon the flag
c. In United States v. Eichman, the Court declared this
law unconstitutional as well, stating that it had the
same fundamental flaws at the TX statute, even if it
wasnt limited to situations where the conduct
would offend another
4. Campaign finance
a. Political speech is at the very core of the 1st
amendment; in Eu v. San Francisco County
Democratic Central Committee, the Court declared
that the 1st amendment has its fullest and most
urgent application to speech uttered during a
campaign for public office
b. Buckley v. Valeo: involved a challenge to the 1974
amendments to the FEC Act of 1971; the Court
refused to apply OBrien, thereby clearly treating

36
 spending money in a political campaign as a form
of political speech, not conduct that communicates,
i. Drawing a distinction between contribution
limits by individuals, groups, or PACs and
campaign expenditure limits, upholding the
former and invalidating the latter, stating
that expenditure limits restricted the nature
and quality of speech, unlike contribution
limits, which also had weaker justifications
ii. Upholding disclosure requirements because
they provide important information to the
electorate, they deter corruption or the
appearance of corruption, and they provide
crucial information for enforcing the
contribution limits in the law
iii. Upholding the provisions that provided for
public funding of presidential elections,
stating that such funding increases
expression in connection with election
campaigns
IV. Forums of Expression
a. The Court initially rejected any claim of a right to use government
property for speech purposes (Davis v. Massachusetts)
b. But, for the last half-century, the Court has recognized a right to use at
least some government property under some circumstances for speech
(Hague v. Committee for Industrial Organization and Schneider v. New
Jersey)
c. Perry Education Association v. Perry Local Educators Association:
classified the different types of government property and articulated
varying rules for when speech in each can be regulated (see below)
d. Government Properties
i. Public Forums: government property that they are
constitutionally obligated to make available for speech, i.e.
sidewalks and parks
1. The regulation must be content-neutral, unless the
government can justify a content-based restriction by
meeting strict scrutiny
a. Police Department of the City of Chicago v. Mosley:
overturned a law that prohibited picketing or
demonstrations within 150 feet of a school building
while the school was in session, except for peaceful
picketing in connection with a labor dispute,
declaring that it was an impermissible subject
matter restriction on speech and expressly using
equal protections for analyzing the law by stating
that special treatment was given to one particular
subject, similar to Carey v. Brown (see facts above)
b. Frisby v. Schultz: sustained an ordinance that
prohibited picketing before or about any
residence, concluding that the law was content-

37
 neutral and was narrowly tailored to protect
peoples tranquility and repose in their homes, as
ordinance allowed picking in the are and even on
the street
c. Thus, regardless of whether analysis is under equal
protection or solely under 1st amendment, the
government cannot regulate speech in a public
forum based on the viewpoint or subject matter of
the speech unless strict scrutiny is met
2. It must be a reasonable time, place, or manner restriction
that serves (1) an important government interest and (2)
leaves open adequate alternative places for speech
a. Heffron v. International Society for Krishna
Consciousness: upheld a regulation of speech at
the MN state fair that prohibited the distribution of
literature or the soliciting of funds except at booths,
accepting the argument that the rule was justified
by the important interest of regulating the flow of
pedestrian traffic as sufficient to satisfy the
requirement that a place or manner restriction
must serve a substantial state interest and stating
that the regulation was content neutral because it
applied to all literature
b. Hill v. Colorado: upheld a regulation on protests
outside abortion clinics, stating it was content-
neutral because its not a regulation of speech but
a regulation of where speech may occur, it was not
adopted because of disagreement with the
message it conveys, and the states interest in
protecting access and privacy are unrelated to the
content and also stressing that this was a time,
place, and manner restriction on speech that
served the important interest of protecting patients
and health care workers
c. Kovacs v. Cooper: upheld a restriction on the use of
sound amplification devices, such as loudspeakers
on trucks
d. Grayned v. Rockford: upheld a citys ordinance that
prohibited any person to make any noise or
diversion which disturbs or tends to disturb the
peace or good order of a school, finding that the
restriction was based on the citys important
interest in ensuring order sufficient for schooling
and, thus, a reasonable time, place, and manner
restriction
e. Clark v. Community for Creative Non-Violence:
approved a federal regulation and Park Service
decision to keep a group protesting the plight of the
homeless from sleeping in the park, accepting that
it was symbolic purpose, but emphasizing that the

38
 content-neutral regulation left adequate alternative
ways of expressing the message
f. Brown v. Louisiana: reversed the conviction of a
group of blacks who had conducted a silent sit-in as
a protest at a racially segregated public library,
stressing that a silent protest did not interfere with
the operation of the library
g. United States v. Grace: declared unconstitutional a
broad restriction of speech on the public sidewalks
surrounding the Supreme Courts building, finding
that a total ban on all speech was unnecessary to
preserve order and prevent disruption of Court
proceedings
3. A licensing or permit system for the use of public forums
(1) must serve an important purpose, (2) give clear
criteria to the licensing authority that leaves almost no
discretion, and (3) provide procedural safeguards such as
a requirement for prompt determination of license request
and judicial review of license denials
a. Cox v. New Hampshire: upheld an ordinance that
required that those wishing to hold a parade or
demonstration obtain a permit and that allowed a
permit to be denied only if the area already was in
use by another group, finding that it was an
important interest in having only one
demonstration at a time and that the licensing
board was not vested with arbitrary power or an
unfettered discretion
b. Lovell v. Griffin: overturned a city ordinance that
prohibited the distribution of leaflets, literature, or
advertising without the written permission of the
city manager, stating that the restraint strikes at
the very foundation of the freedom of the press
because that freedom was primarily directed
against the power of the licensor
c. Forsyth County, Georgia v. Nationalist Movement:
overturned an ordinance that required a permit in
order for a demonstration to occur and that allowed
government officials to charge a permit fee of up to
$1000, concluding that there are no articulated
standards and that the 1st amendment prohibits the
vesting of such unbridled discretion in a
government official
4. Need not use the least restrictive alternative, although
they must be narrowly tailored to achieve the
governments purpose
a. Ward v. Rock Against Racism: upheld a requirement
in NYC that any concert using the Bandshell had to
use city sound engineers and city sound
equipment, concluding that so long as the means

39
 chosen are not substantially broader than
necessary to achieve the governments interest,
the regulation will not be invalid simply because
the governments interest could be adequately
served by some less-speech-restrictive alternative
ii. Designated (Limited) Public Forums: places that the government
could close to speech, but that the government voluntarily and
affirmatively opens to speech
1. Widmar v. Vincent: ruled that a university that allowed
student groups to use school buildings could not exclude
religious student groups from access
2. Lambs Shelter v. Center Moriches Union Free School
District: held that once a school district allowed
community groups to use facilities during evenings and
weekends, religious groups could not be excluded
3. Good News Club v. Milford Central School: considered the
constitutionality of an elementary schools exclusion of a
groups using school property after school for religious
activities including prayer and Bible study, holding
a. That excluding the group violated the protection of
free speech, stating that, although a state may be
justified in reserving its forum for certain groups or
for the discussion of certain topics, it cannot
discriminate on the basis of viewpoint and the
restriction must be reasonable in light of the
purpose served by the forum
b. That allowing the religious group to use the
property on the same terms as other community
groups would not violate the establishment clause
iii. Non-Public Forums: government properties that they can close
to all speech activities, so long as the regulation is reasonable
(not arbitrary, capricious, or invidious) and viewpoint neutral
1. Adderley v. Florida: held that the government could
prohibit speech in the areas outside prisons and jails,
emphasizing the governments security interests and the
ability of the government to preserve the property under
its control for the use to which it is lawfully dedicated
2. Greer v. Spock: held that military bases, even parts of
bases usually open to the public, are a nonpublic forum,
stating that the government could exclude speech like
demonstrations, picketing, sit-ins, protest marches, and
political speeches to insulate the military from political
activities
3. Lehman v. City of Shaker Heights: upheld a content-based
restriction (city sold advertising space on its buses, but
refused to accept advertising on behalf of a candidate for
public office), stating that the managerial decision to limit
car card space to innocuous and less controversial
commercial and service oriented advertising does not rise
to the dignity of a 1st amendment violationweird.

40
 4. United States v. Kokinda: upheld a restriction on
solicitations on post office properties, stating that postal
sidewalks do not have the characteristics of public
sidewalks traditionally open to expressive activity
5. International Society for Krishna Consciousness, Inc. v.
Lee: concluded that airports are a nonpublic forum and
regulations would be upheld so long as they are
reasonable, stating that the government has an important
interest in preventing fraud with regard to solicitation of
funds, but that the distribution of literature is permissible
6. Arkansas Educational Television Commission v. Forbes:
held that a candidate debate sponsored by a government-
owned television station is a non-public forum and that
the exclusion of minor party candidates is not viewpoint
discrimination, stating that a broadcasters choice of
content and selection of speakers is itself expressive
activity protected by the 1st amendment and that the
selection of speakers was based on the level of popular
support, not the viewpoint expressed
7. So, some possible criteria
a. Whether the places it traditionally available to
speech, i.e. sidewalks v. airports
b. Whether speech is incompatible with usual
functions of the place
c. Whether the primary purpose of the place is for
speech or non-speech
e. Authoritarian Environments
i. Military
ii. Prisons
iii. Schools
1. Tinker v. Des Moines Independent Community School
District: ruled that students in a high school could wear
black armbands to protest the Vietnam War, stating that
state-operated schools may not be enclaves of
totalitarianism, that the speech was protected absent a
showing that is would materially and substantially
interfere with the requirements of appropriate discipline in
the operation of the school, and that armbands were a
silent protest that did not disrupt education within the
schools
2. Morse v. Frederick: held that confiscating a banner stating
Bong Hits 4 Jesus at a school-sanction and school-
supervised event and suspending the student who
brought the banner did not violate the 1 st amendment
because schools may take steps to safeguard those
entrusted to their care from speech that can reasonably
be regarded as encouraging illegal drug use
V. Freedom of Association
a. Laws Prohibiting and Punishing Membership
i. Government may punish membership only if it proves

41
 1. That a person actively affiliated with a group
2. Knew of the groups illegal objectives
3. Had the specific intent to further those illegal objectives
(see Scales and Noto, above)
ii. Elfbrandt v. Russell: applied Scales test to a states loyalty oath
and law that prohibited anyone from holding office if they were a
member of a group such as the Communist Party, stating that it
was impermissible for the government to punish individuals for
being a member of a group without proof that the individual join
knowing of its illegal objectives and with the specific intent to
further them (same holding as in Keyishian v. Board of Regents
and United States v. Robel)
b. Laws Requiring Disclosure of Membership
i. NAACP v. State of Alabama: overturned an AL law which required
that out-of-state corporations meet certain disclosure
requirements, including the disclosure of NCAAP membership
lists, stating that the inviolability of privacy in group association
may in many circumstances be indispensible to preservation of
freedom of association, particularly where a group espouses
dissident beliefs (reaffirmed in Shelton v. Tucker, where state
law required all teachers disclose their group memberships on
an annual basis)
ii. Campaign disclosure (see Buckley, above)
c. Compelled Association
i. Abood v. Detroit Board of Education: upheld a state law that
required all local government employees to pay a union service
charge, stating that the non-members could be forced to pay a
charge to subsidize the collective bargaining activities of the
union, but that it was unconstitutional to use the charges to pay
for ideological causes (reaffirmed in Keller v. State Bar of
California, stating that bar dues could be collected from all
members to pay for bar-related activities)
ii. Board of Regents of the University of Wisconsin System v.
Southworth: rejected a 1st amendment challenge by students
who objected to being forced to subsidize causes that opposed,
stating that the mandatory student activity fees helped to
facilitate a diversity of ideas on campus and were permissible so
long as they were administered in a viewpoint neutral manner
d. Laws Prohibiting Discrimination
i. Roberts v. United States Jaycees: reaffirmed freedom of
association as a fundamental right, but stated that it is not
absolute and that infringements on that right may be justified by
regulations adopted to serve compelling state interests, such as
prohibiting discrimination, unrelated to the suppression of ideas,
that can not be achieved through means significantly less
restrictive of associational freedoms (reaffirmed in Board of
Directors of Rotary International v. Rotary Club of Duarte)
ii. Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of
Boston: held that a private group that organized a St. Patricks
Day Parade could exclude a gay, lesbian, and bisexual group

42
 from participation, stating that organizing a parade is an
inherently expressive activity and those doing so have a right to
exclude messages inimical to their own
iii. Boy Scouts of America v. Dale: held that freedom of association
protects the right of the Boy Scouts to exclude gays in violation
of a states antidiscrimination statute because of the groups
expressive message, which was based on the Boy Scouts
interpretation of its own words and from the position it had
taken during litigation

Freedom of Religion
I. Introduction
a. Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof
b. What is religion? Has been considered in 3 contexts:
i. Under the Selective Service Act
1. United States v. Seeger: broadly defined religion to
include nontheistic views, stating that the test of belief
in a relation to a Supreme Being is whether a given
belief that is sincere and meaningful occupies a place in
the life of its possessor parallel to that filled by the
orthodox belief in God of one who clearly qualifies for the
exemption (reaffirmed in Welsh v. United States)
ii. Requirement for Sincerely Held Beliefs
1. United States v. Ballard: indicated that the judiciary can
determine only if the individuals sincerely held their
beliefs as religious views, not whether they are true or
false (here, the leaders of the I Am religion were
indicted for mail fraud because they asked people to send
them donations in exchange for offering to cure them of
diseases); dissent stated that sincerity is not likely to be
ascertained by a jury or a court
iii. The Relevance of Religious Dogma and Shared Beliefs
1. Thomas v. Review Board of the Indiana Employment
Security Division: ruled that an individual could claim a
religious belief even though it was inconsistent with the
doctrines of his or her religion, stating that it is not within
the judicial function and judicial competence to inquire
whether the petitioner or his fellow worker more correctly
perceived the commands of their common faith
(reaffirmed in Frazee v. Illinois Employment Security
Department)
II. Free Exercise Clause
a. Introduction
i. Embraces two concepts
1. Freedom to believe, which is absolute
2. Freedom to act, which was some limitations
ii. Prior to the 1960s, the Court did not formulate a test for the free
exercise clause, although it did invalidate laws that precluded
solicitation for religious purposes (Cantwell v. Connecticut) or

43
 that taxed such activity as infringing freedom of speech and
religion (Murdock v. Pennsylvania and Follett v. McCormick)
b. Sherbert v. Verner: held that strict scrutiny should be used in
evaluating laws burdening free exercise of religion and declared
unconstitutional the denial of unemployment benefits to a woman who
was discharged from her job rather than work on her Saturday Sabbath
c. While Sherbert established a strict scrutiny standard, the Court has
rarely struck down laws on this basis, except in two areas
i. Laws that denied benefits to those who quit their jobs for
religious reasons (Thomas v. Review Board, Hobbie v.
Unemployment Appeals Commission of Florida, and Frazee v.
Illinois Department of Income Security, all holding that
employment benefits must be given to people who quit jobs for
religious reasons)
ii. Compulsory schooling laws (Wisconsin v. Yoder, where the Court
held that free exercise of religion required that Amish parents be
granted an exemption from compulsory school laws for their 14-
and 15-year-old children)
d. Employment Division v. Smith: involved a challenge by Native
Americans to an OR law prohibiting use of peyote, a hallucinogenic
substance, challenging the states determination that their religious
use of peyote, which resulted in their dismissal from employment, was
misconduct disqualifying them from receipt of unemployment
compensation benefits; the Court rejected the use of strict scrutiny for
challenges to neutral laws of general applicability that burden religion,
stating that free exercise does not relieve an individual of the
obligation to comply with a valid and neutral law of general
applicability on the ground that the law proscribes (or prescribes)
conduct that his religion prescribes (or proscribes)
i. Neutral law of general applicability
1. Rational basis test standard
a. With the exception of cases that involve the Free
Exercise Clause in conjunction with other
constitutional protections, such as freedom of
speech and of the press, or the right of parents to
direct the education of their children, which use
strict scrutiny
ii. Not neutral or not of general applicability
1. Strict scrutiny standard
2. Church of the Lukumi Babalu Aye, Inc. v. Hialeah:
overturned a city ordinance that prohibited ritual sacrifice
of animals, stating that the law was not neutral because
its clear object was to prohibit a religious practice and
that it was not of general applicability because the law
was drafted only to forbid killing occasioned by religious
sacrifice and not in generally preventing cruelty to
animals
e. The Law after Smith
i. Religious Freedom Restoration Act (RFRA) of 1993: purpose to
restore the compelling interest test as set forth in Sherbert and

44
 Yoder, and to guarantee its application in all cases where free
exercise is substantially burdened; and to provide a claim or
defense to persons whose religious exercise is substantially
burdened by the government
1. City of Boerne v. Flores: held RFRA as unconstitutional as
applied to state and local governments because Congress
lacked the authority under 5 of the 14th amendment to
expand the scope of rights
ii. Religious Land Use and Institutionalized Persons Act (RLUIPA):
government lands use decisions and treatment of prisoners that
significantly burden religion must meet strict scrutiny
f. Can the government deny funding for religious education?
i. Locke v. Davis: held that a state government can restrict its
college scholarships so as to prevent them from being used by
those studying for the ministry, emphasizing that while the
government may constitutionally allow such scholarships, it is
not required to do so and stating that the denial of scholarship
money does not interfere with free exercise of a religion because
an individual can still receive training to be a pastor
III. Establishment Clause
a. County of Allegheny v. American Civil Liberties Union Greater
Pittsburgh Chapter: concerned two holiday displaysone was a crche
and one was a large Christmas tree, menorah, and a sign saying that
the city salutes liberty during the holiday season; the Court deemed
the display as unconstitutional, but with three different approaches:
i. Three justices took a strict separation approach, stating that the
Establishment Clause should be construed to create a strong
presumption against the display of religious symbols on public
property
ii. Four justices took an accommodation approach, stating that the
principles of the Establishment Clause and our Nations historic
traditions of diversity and pluralism allow communities to make
reasonable judgments respecting the accommodation or
acknowledgment of holidays with both cultural and religious
aspects
iii. Two justices took a neutrality approach, specifically applying the
symbolic endorsement test, and found that the menorah was
constitutional, but the nativity scene was unconstitutional
b. Government Discrimination Among Religions
i. It is firmly established that the government violates the
Establishment Clause if it discriminates among religious groups
ii. Such discrimination will be allowed only if strict scrutiny is met
iii. Larson v. Valente: overturned a MN law that imposed registration
and reporting requirements on charitable organizations, but
exempted religious institutions that received more than half of
their financial support from members contributions, stating that
the fifty percent rule sets up precisely the sort of official
denominational preference that the Framers of the First
Amendment forbade

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 iv. Board of Education of Kiryas Joel Village School District v.
Grumet: overturned a state law that created a separate school
district for a small village that was inhabited by Hasidic Jews,
stating that the government created a school district specifically
to help one religion so that it could provide special education
without its children having to attend school with those outside
the faith and also stating that the law impermissibly delegated
government authority to a religious entity
c. Theories of the Establishment Clause
i. Strict Separation: to the greatest extent possible government
and religion should be separated
1. If the law is not discriminatory, then use Lemon
2. Lemon v. Kurtzman Test requires that
a. There must be a secular purpose for a law
i. Stone v. Graham: overturned a state law that
required the Ten Commandments posted in
public school classrooms because it has no s
ii. ecular legislative purpose
iii. Edwards v. Aguillard: overturned a state law
that required the teaching of creation
science because the laws primary purpose
was to endorse a particular religious doctrine
iv. McGowan v. Maryland: upheld state laws
that required businesses to close on
Sundays because the purpose and effect
is to provide a uniform day of rest for all
citizens
b. Its principal or primary effect must be one that
neither advances nor inhibits religion
i. Estate of Thornton v. Caldor: overturned a
law that provided that no person may be
required by an employer to work on his
Sabbath because the law had a primary
effect that impermissibly advanced a
particular religious practice over all other
interests
ii. Corporation of the Presiding Bishop of the
Church of Jesus Christ of Latter-Day Saints v.
Amos: upheld an exemption for religious
organizations from Title VIIs prohibition
against discrimination in employment based
on religion because its purpose was to
alleviate significant government interference
with the ability of religious organizations to
define and carry out their religious missions
c. The statute must not foster an excessive
government entanglement with religion
ii. Neutrality Theory: government cannot favor religion over
secularism or one religion over others

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 1. Endorsement Test: the government violates the
Establishment Clause if it symbolically endorses a
particular religion or if it generally endorses either religion
or secularism
a. Capitol Square Review and Advisory Board v.
Pinette: issue of whether the government could
preclude the Ku Klux Klan from from erecting a
large Latin cross in the park across from the Ohio
Statehouse; the Court held that excluding the cross
violated free speech and allowing it to be present
did not violate the Establishment Clause
b. Several approaches to the endorsement test,
discussed in Capitol Square:
i. Rejected the use of the test where the issue
is private speech on government property
(plurality)
ii. Should be applied from the perspective of
the perceptions of a well-educated and well-
informed observer (concurrence)
iii. Should look to the perceptions of the
reasonable passerby (dissent)
iii. Accommodation: government violates the Establishment Clause
only if it literally establishes a church or coerces religious
participation, i.e. the Court should interpret the Establishment
Clause to recognize the importance of religion in society and
accommodate its presence in government
1. Coercion Test (applied in Lee, see below)
a. A government may not coerce anyone to support or
participate in religion or its exercise, or otherwise
act in a way which established a state religion or
religious faith, or tends to
b. But there tends to be violations of the
Establishment Clause even without coercion
d. When Can Religion Become a Part of Government Activities?
i. Release Time
1. McCollum v. Board of Education: declared unconstitutional
a school policy of allowing students to be released to
religious instruction classes conducted during regular
school hours in the school building by outside teachers,
stating that it violated the wall of separation between
church and state and explained that here the states tax-
supported public school buildings were being used for
dissemination of religious doctrine and it afforded
sectarian groups an invaluable aid by providing pupils
with religious classes through use of the States
compulsory public school machinery
2. Zorach v. Clauson: upheld a school board policy that
allowed students to be released during the school day for
religious instruction outside the school, concluding that
allowing students to receive religious instruction during

47
 school hours was simply accommodating religion and not
a violation of the Establishment Clause since government
funds and facilities were not used
ii. School Prayers and Bible Reading
1. Santa Fe Independent School District v. Doe: declared
unconstitutional student-delivered prayers at high school
football games and expressly rejected that argument that
this was impermissible discrimination against religious
speech, emphasizing that the school had not created a
forum where student could say anything they wanted
2. Engel v. Vitale: invalidated a school policy of having a
non-denominational prayer, composed by the states
Board of Regents, recited at the beginning of each school
day, emphasizing that neither the fact that the prayer
may be denominationally neutral nor that its observance
is voluntary can free it from the limitations of the
Establishment Clause
3. Abington School District v. Schempp: declared
unconstitutional a states law and a citys rule that
required the reading, without comment, at the beginning
of each school day of verses from the Bible and the
recitation of the Lords Prayer by student in unison,
emphasizing that these religious exercises were
prescribed as part of the curricular activities of the
students, conducted in school buildings, and supervised
by teachers and distinguished studying the Bible in a
literature or comparative religion course, which would be
permissible
4. Wallace v. Jaffree: overturned an AL law that authorized a
moment of silence in public schools for meditation or
voluntary prayer, stating that the record was
unambiguous that the law was not motivated by any
clearly secular purpose indeed the statute had no secular
purpose
5. Lee v. Weisman: declared unconstitutional clergy-
delivered players at public school graduations, stressing
the inherent coercion in allowing prayer at graduation
because it was an important event and students likely feel
psychological pressure not be absent during the prayer;
the concurrence emphasized that prayers in public
schools are unconstitutional even absent coercion
because the government mush not engage in religious
practices either (here, the school decided that there
should be a religious invocation and benediction, chose a
clergy member to perform the prayers, and gave
instructions concerning them); the dissent disagreed that
the prayer was coercive and further argued that the
prohibition of prayer was impermissibly hostile to religion
iii. McCreary County v. American Civil Liberties Union of Kentucky:
held that posting large readily visible copies of the Ten

48
 Commandments in their courthouses violated the Establishment
Clause, applying the Lemon test and finding that the purpose
was not secular
iv. Van Orden v. Perry: held that the 6-foot monolith inscribed with
the Ten Commandments surrounding the TX State Capital, along
with 21 historical markers and 17 monuments, did not violate
the Establishment Clause, stating that the Lemon test was
inappropriate and that the Court instead the analysis should be
driven by both the monuments nature and the Nations history,
elaborating that the 40 years the monument went unchallenged
suggest more strongly than can any set of formulaic tests that
few individuals, whatever their belief systems, are likely to have
understood the monument as amounting, in any significantly
detrimental way, to a government effort to establish religion and
that the public visiting the capitol grounds is more likely to have
considered the religious aspect of the tablets message as part
of what is a broader moral and historical message reflective of a
cultural heritage (essentially it still satisfied the secular purpose
test)

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