EQUAL PROTECTION

RELEVANT CONSTITUTIONAL PROBLEMS

o Which members shall be determined in a member o years and three fifths of all other problems
(slaves)
Big questions start with, what does it mean?
3/5 of all persons: Slaves- persons who are not free
what is the provision for? How is it different?
It number one determines representation of how many electors they get in
electoral college
What does it say about representation?
All free people count as one and it has nothing to do with citizenship
The bigger the number is, the more votes Virginia has
Only reason Jefferson won, more members therefore more representation in the electoral
college
o Art I, Sec 9
Migration of such person.. shall not be prohibited by congress
Congress cant forbid states from importing people into the state until 1808

STATE V POST
o Facts: In 1844, New Jersey amended its constitution to read that all men are by nature free and
have certain inalienable rights such as to life, to liberty and to the pursuit of happiness.
Abolitionists argued that slavery was thereby made illegal.
o Laws must be read in accordance with the nature, the condition and laws of the society in which
they are made.
o Issue: Was the New Jersey constitutional amendment of 1844 enacted for the purpose of ending
slavery? NO
Had the New Jersey constitutional intended to end an institution such as slavery well
known to exist in the State and established by law, it undoubtedly would have used some
clear and definite language to this effect.
o Fed Cons before 1845 was that if a slave ran to a free state, and the owner found him the state
ought to give back the slave to the owner
Slave owners under the authority of the state, going to other states and kidnapping
the slaves basically, without any background check of seeing if they can

DRED SCOTT V SANDFORD

o The Plaintiff, Dred Scott (Plaintiff), a slave, was taken by his former master from Missouri (a
slave state) to Illinois (a free state), then to the Louisiana Territory (free territory) and then back
to Missouri where he was sold to the Defendant, Sandford (Defendant). Plaintiff thereupon sued
in federal court arguing that his trips to free territory made him free.
Issue: Is Petitioner a citizen of the United States and entitled to use of the federal court
system?
No. The original framers of the United States Constitution (Constitution) were
clear in their words and actions. All men included the dominant race and not the
Africans who were imported as slaves. They are still property as they were
originally.

I.

2nd holding: Blacks are not Citizens within the meaning of Article III of the United States
Constitution (Constitution). A person cannot be dispossessed of his property merely
because he takes his property into a particular territory consistent with Due Process.
Justice Taney says: congress cannot ban territory and it was behind its powers and
it was unconstitutional for congress to say that
Congress cant just pass a law not does it have the power to change slavery
o Taney seems to switch interpretive methodologies in the middle of his
own opinion. He uses somewhat of a textualist approach in part one to find
that Plaintiff was not a Citizen within the meaning of Article III of the
Constitution. He then switches to a somewhat free-floating, moralistic,
approach in part two in order to determine that Plaintiff cannot be free
consistent with Due Process.
In part one of the opinion, in an effort to read the Constitution
consistent with the framers intent, J. Taney holds that the term
Citizens cannot include Blacks, because when the Framers used the
language Citizens they did not consider Blacks as such.
Alternatively, he could have assumed that the Framers meant what
they wrote.
o In part one of the opinion, J. Taney held that diversity jurisdiction did not
exist for this case, thus, the case was not properly before the Federal
Courts. Nevertheless, instead of just dismissing the case as the Supreme
Court on his own reasoning should, J. Taney takes the opportunity in part
two of the opinion to stress how unconstitutional it would be to dispossess
Defendant of his slave.

Traditional Approach
A. Generally
1. EP Clause used to challenge classifications
2. EP doesnt mean good or bad, it means equal
B. Classification discrimination: classifications on the basis of identifiable group members (race,
gender, age).
1. Favored group
a. Not subject to burdens of regulatory law, or
b. Gets benefit of benefit law.
2. Disfavored group
a. Subject to burden of regulation, or
b. Does not get benefit of benefit law.
C. Rational Basis Test: purpose of law must be legitimate and bear a rational basis to the advancement
of that purpose. Classification must be reasonably related to the advancement of a legitimate govt.
interest.
1. Dept. of Agriculture v. Moreno: Unrelated people living in the same household were not allowed
to get food stamps. Held: classification was objectively unreasonable b/c it was illegitimate or
for a bad purpose. No rational basis. Exclusion was irrelevant to purposes of the Act, which was
to raise levels of nutrition among low-income houses. Favored and disfavored groups were
similarly situated; classification objectively unreasonable.
2. Bowling v. Sharpe: South passed law requiring racial segregation in the D.C. public schools.
Held: violates DP Clause. Whatever is violative of fed govt. is violative if done by states.
D. General Classifications
1. Objective Reasonableness: premised on assumptions about characteristics of a group
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a. Over-inclusiveness: a classification that includes people it shouldnt (includes larger

class that does not achieve its purpose)
i.
Sufficiently the case most of the time (people 18+ can vote even though some
are idiots.)
b. Under-inclusiveness: regulatory law that exempts certain people who should be included.
c. Example: Law gave property tax exemption to widows, but not widowers.
i.
Favored group: widows
ii.
Disfavored group: widowers
2. Three-element test to analyze general classifications:
a. Identify the favored and disfavored groups. (This will appear from the terms of the
classification).
b. Are the favored and disfavored group similarly situated with respect to the purpose of
the underlying legislation?
c. Must be independent justification for differential treatment for court to uphold law.
II.

RACE AND ETHNIC ANCESTRY STRICT SCRUTINY

A. Background: classifications on the basis of race are subject to strict scrutiny.
1. Strict Scrutiny: Under strict scrutiny
a. The asserted govt. interest must be compelling (sufficient importance and validity), and
b. The particular use of race must be narrowly tailored to advance that interest.
B. Discrimination Against Racial and Ethnic Minorities
1. What constitutes invidious racial discrimination?
a. Govt. can keep racial records (birth certificates, etc.)
b. The state can require all black schoolchildren to undergo testing for sickle cell anemia.
Constitutional b/c (1) sickle cell anemia is more prominent in blacks and (2) there is no
discrimination.
2. Plessy v. Ferguson: Segregation of races is reasonable if based upon established custom, usage
and traditions of people in state. Separate but equal isnt discriminating against either race.
Facts: A Louisiana statute required railroad companies to provide separate, but equal
accommodations for its Black and White passengers. Plessy was prosecuted under the statute
after he refused to leave the section of a train reserved for whites. Holding: A law, which
authorizes or requires the separation of the two races on public conveyances, is consistent with
the Fourteenth Amendment of the United States Constitution (Constitution) unless the law is
unreasonable.
3. Korematsu v. U.S.: Apprehension by military authorities of the gravest imminent danger to the
public safety can justify the curtailment of the civil rights of a single racial group, although it is
suspect and subject to strict scrutiny. Court never held that all racial discrimination is
unconstitutional. Constitution prohibits invidious discrimination one that cannot be justified
when subject to review under strict scrutiny. When race can be justified under strict scrutiny it is
not invidious and therefore not unconstitutional. Ordinarily racial discrimination against the
minority cannot be justified b/c it can not be shown to be necessary.
4. Brown v. Board of Education: separate but equal doctrine has no application in education and
the segregation of children in public schools based solely on their race violates EP clause.
Detrimental effect on black children. Separate facilities are inherently unequal; deprives blacks
of EP b/c doesnt offer them same access to education as whites. Facts: The Plaintiffs, various
black children (Plaintiffs), were denied admission to schools attended by white children under
laws that permitted or required segregation by race. Plaintiffs sued, seeking admission to public
schools in their communities on a nonsegregated basis. You cant deprive kids from equal
opportunity. Rule: Plessy v. Ferguson was a case in which the Supreme Court upheld a law which
made equal but separate accommodation mandatory for black and white railway passengers. This
paved the ways for a series of laws providing equal but separate facilities in various fields. The
only dissenting opinion in Plessy came from Justice Harlan, who declared the unreasonable
separation of citizens on a public highway unjustifiable, and wrong. He made it clear that this
could not be amended by providing equal accommodation in railway cars, nor would this deceive
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anyone. The present case made segregation unconstitutional in all public facilities as well as
schools. Later orders were given per curiam on the basis of this case, disallowing segregation in
beaches, buses, golf courses and parks.
I. Can the meaning and function of the constitution change as time went
on? Do we just interpret the constitution based on current times or do we
go back to the intent of the framers? This is an ongoing debate
b. In 1868- most states had segregation, post this era, the supreme court made it clear that
the intent of the drafters of the constitutional language is not to allow for segregation
5. Brown v. Board of Education II: with all deliberate speed: which is really an oxymoron- the court
said to start with prompt and reasonable start toward full compliance. They say that they ought to
start towards compliance but it doesnt have to be speedy. Once such a start has been made, the
courts may find that additional time is necessary to carry out the ruling in an effective manner.
The burden rests on the school authorities to establish that such time is necessary in the public
interest and is consistent with good faith compliance at the earliest practicable date.
i.
Although the court ruled for public schools to desegregate, the change itself
was not immediate at all. One reason: court didnt say for immediate action
since they couldnt enforce it.
6. Green v. New Kent: Its 1954-55 desegregation decisions put an "affirmative duty" on school
boards to abolish dual schools and to establish "unitary" systems. It disapproved the county's
"freedom-of-choice" school plan for this case. Justice William J. Brennan, writing for the Court,
explained: "The burden on a school board today is to come forward with a plan that promises
realistically to work, and promises realistically to work now." The Court ordered the local school
board to develop a new plan to "convert promptly to a system without a 'white' school and a
'Negro' school, but just schools." It also ordered that the U.S. District Court maintain oversight of
the case and the school board's plan to ensure that integration would occur in the near future.
a. What about in the North? 1971 South: 56% of blacks attended blacks. 72% in north did.
Some because north had more residential seg. but some was south was better as hiding it.
C. Milliken v. Bradley: Detroit schools segregated and that no evidence of discrimination in the outlying
schools was found.
1. Milliken II:
D. Missouri v. Jenkins
a. Even though we are now in the post brown era, schools are filled with just white people
or black people.
E. New York City Transit Auth. v. Beazer (methadone drug user case)
a. A New York City Transit Authority rule barred the employment of persons who use
narcotics. The Transit Authority applied the rule to all persons taking methadone a drug
widely used in the treatment of heroine addiction.
b. Issue: blanket exclusion of all users unconstitutional?
c. Held: No, assumptions upon which the Transit Authoritys rule are based concern matters
of personnel policy that do not implicate the concerns the Equal Protection Clause of the
Constitution are intended to protect. The Transit Authoritys rule serves the general
objectives of safety and efficiency. The rule is not directed against any class of persons
characterized by some unpopular trait. Therefore, it does not create the likelihood of bias
on the part of the ruling majority.
d. Dissent: Justice White, employable methadone users should not be treated differently
than of those not in that class.
i.
Said that the Transit Authority uses a rule that classifies fully employable
methadone users as dispositively different from the general population without
any justification.
ii.
The relevant difference requirement holds that treating people differently
can only be justified on the basis of differences between people relevant to the
purpose of a rule.
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F. Anytime the state passes any rules, its creating some sort of classification, like LSAT score, fat/skinny,
any legal rule creates a classification, if you do X you get punished, all laws classifies for the purpose of
equal protection analysis, our question is what are those protections?
1. Hypo: no person under 10yrs old shall attend Wayne law: yes, state can do thatbut why? Not
intellectually mature,
a. No woman shall attend Wayne law: no, state cannot do that- there are differences
between women and men. Women can have babies, etc. unlike people 10 or over 10,
having babies isnt relevant. As a starting point, that makes one classification ok and
other not, under 10 and over 10 are relevant in the govt goal in setting up a school, vs the
other group is not. If this is right, then when looking at the classification, we need to
figure out not only these groups are different, but are these groups different in some
relevant way (to govt goal)
G. Railway Express Agency Inc v NY:
a. The Appellant, Railway Express Agency sells advertising space on the side of its trucks.
The Appellee, New York , recently passed a law forbidding advertising vehicles when the
advertisements were not related to the business of the vehicle. This classification has a
relation to the purpose for which it was made and does not contain the kind of
discrimination against which the Equal Protection Clause of the Constitution protects
concurrence. The burden of showing unreasonableness should always be on the person
questioning the regulation.
H. Williamson v. Lee Optical: An Oklahoma law that prevented persons who were not licensed optometrists
or ophthalmologists from fitting lenses for eyeglasses was unsuccessfully challenged under the Due
Process Clause because it prevented opticians (artisans qualified to grind lenses, fill prescriptions and fit
frames) from doing much of the work that they used to do. The law also banned advertising eyeglasses
frames. Rule: A state law must be reasonably and rationally related to the health and welfare of the public
to fall under a states Police Powers. It must also not be an arbitrary or discriminatory law.
a. The Oklahoma law may exact a needless, wasteful requirement, but it is for the
legislature, not the courts, to balance the advantages and disadvantages of the new
requirement.
I. Armour v. City Indianapolis:
a. Governments pay for civic projects, like new sewers, by requiring property owners to pay
their fair share. In Indiana, state law assures that such shares would be equal for
homeowners as they connected to the city sewer system. But Indianapolis decided to let
taxpayers either pay for their connection one month at a time, or all at once, in the
beginning. Later, it switched its payment system, and forgave any amounts still owed by
those paying on the installment plan. Those who had paid in full thought that was unfair,
because they had paid everything they owed, while their neighbors had not. They asked
for refunds to make them equal, as state law required. The Court ruled that, as long as the
initial obligations to pay were the same, the city need not pay refunds to those who had
paid in full because that would be a bureaucratic hassle, and state law did not guarantee
refunds, anyway.
b. Held: Because the city had a rational basis for its distinction between homeowners who
had paid their taxes in a lump sum and those who paid over time by installments, the
citys refusal to provide a refund to those who paid in a lump sum did not violate the
Equal Protection Clause.
J. Clover Leaf v Minnesota:
a. Minnesota had a law that banned non-recyclable or reusable milk containers but allowed
recyclable and reusable milk containers. The goal was waste management and
environmental protection. Various companies including those that manufacture nonreturnable plastic milk jugs sued Minnesota.
b. The States law that restricted the type of packaging milk companies could use, which
affected interstate commerce, was upheld as a valid environmental protection method.
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The legislation was not facially discriminatory. The Commerce Clause required the state
to use the least restrictive restraints on interstate commerce to achieve a legitimate
environmental goal. The legislations benefits outweighed its discriminatory effects.
c. This was a non-discriminatory (evenhanded) statute and so the Court balanced any
discriminatory motive against the burden on interstate commerce. In this case the state
had a valid substantial interest in the environment. There were no hidden protectionist
motivations. Furthermore, the burden was not that heavy because companies could easily
modify production to include recyclable containers and many states had different laws
about what the proper milk containers would be.
K. Cleburne v. Living Center:
a. The Petitioner, City of Cleburne (Petitioner), denied a special use permit to the
Respondent, Cleburne Living Center (Respondent), for the establishment of a group
home for the mentally retarded in the community. The Court of Appeals of the Fifth
Circuit determined that this group is a quasi-suspect class and that the ordinance
violated the Equal Protection Clause of the United States Constitution (Constitution).
b. There is no rational basis for requiring this particular group home to have a permit when
other similar arrangements are not required to do so. It is clear that the only reason this
permit was required was because the mentally retarded were involved. The mentally
retarded do not qualify as a suspect or quasi-suspect class because the lack of history of
discrimination and they are not politically powerless. As a group they have been able to
attract the attention of lawmakers on several issues.
L. US Agriculture v. Moreno
a. An amendment to the Food Stamp Act prevented households made up of unrelated
individuals from participating in the program. A class action suit was brought, and the
District Court found a Due Process violation. he amendment to the Act violates the Due
Process clause of the Fifth Amendment. Held: This classification simply does not operate
as to rationally prevent the prevention of fraud. The Food Stamp Act has complete
sections devoted to such purpose.
b. The challenged statutory classification of households of related versus unrelated persons
is clearly irrelevant to the stated purposes of the Act. If it is to be sustained, the
challenged classification must rationally further some legitimate government interest. The
legislative history that exists suggests it is intended to prevent hippies and hippie
communes from participating in the food stamp program. The equal protection clause
does not allow that a constitutional desire to harm a politically unpopular group can
constitute a legitimate governmental interest.
i.
The Government maintains that the classification is rationally related to the
legitimate interest in minimizing fraud in the administration of the food stamp
program. It claims that in adopting the amendment Congress may have thought
that: 1) households with one or more unrelated members are more likely than
fully related households to contain individuals who abuse the program by
fraudulently failing to report sources of income or by voluntarily remaining
poor; and 2) such households are relatively unstable, thereby increasing the
difficulty of detecting such abuses. Even if these wholly unsubstantiated
assumptions were accepted as rational, this Court would not agree with the
Governments conclusion that the denial of essential federal food assistance to
all otherwise eligible household containing unrelated members constitutes a
rational effort to deal with these concerns. The Act itself contains provisions
specifically aimed at fraud.
M. Romer v. Evans
1. This classification simply does not operate as to rationally prevent the prevention of fraud. The
Food Stamp Act has complete sections devoted to such purpose. A bare desire to harm a
politically unpopular group cannot constitute a legitimate governmental interest. The judgment of
the Supreme Court of Colorado is affirmed.
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2. Justice Anthony Kennedy stated that Amendment two relegates homosexuals to a solitary class
and withdraws from them, but no others, legal protections arising from discrimination. Its reach
includes the States public accommodation laws, as well as laws prohibiting discrimination in the
housing, insurance and education markets. A law making it more difficult for one group of
citizens to seek assistance from the government than another is a denial of the Equal Protection of
the laws in the most literal sense (i.e. the means do not fit whatever ends sufficiently to pass
rational basis review).
3. Moreover, the means of Amendment two are so broad in relation to its ends (to prevent the
deterioration of sexual morality) that we cannot credit them. The Supreme Court of the United
States (Supreme Court) is left with the conclusion that Amendment two constitutes a
classification for its own sake. Class legislation is obnoxious to the Fourteenth Amendment.
(i.e., the ends are illegitimate).

N. De Jure (invidious racial) Discrimination vs. De Facto Discrimination: Intentional discrimination may
exist even though law in question is racially neutral on its face. Law may be deliberately administered
in a discriminatory way; or the law, although neutral in its language and applied in accordance with its
terms, may have been enacted with a purpose (or motive) to disadvantage a suspect class.
1. Yick Wo v. Hopkins: a valid law unevenly and discriminatorily administered violates the EP
Clause. If a law is racially neutral but intentionally administered in a racially discriminatory
manner, it is no longer racially neutral.
2. Washington v. Davis: A law or official govt. practice must have a discriminatory purpose, not
merely a disproportionate effect on one race, in order to constitute invidious discrimination.
3. Test for discrimination under Title VII:
a. Disparate treatment (intentional discrimination)
b. Disparate impact (employer operates in seemingly neutral way, effect is discrimination
against protected class.) Employers : business necessity.
4. Arlington Heights v. Metropolitan Housing Dev. Corp.: Village refused to rezone land from
single-family to multiple-family, so as to permit respondents construction of racially integrated
housing. Held: no violation of EP. s werent able to prove a discriminatory purpose.
5. It is not necessary to prove that discriminatory intent was the only factor or even the
predominant factor. It is sufficient to show that race was one of the factors influencing the
decision. Then the burden shifts to the govt. to show that even without the racial
discrimination they would have enacted the law anyway.
6. Castaneda v. Partida: Substantial under-representation of a group constitutes a constitutional
violation if it results from purposeful discrimination. Degree of under-representation must be
proved by comparing proportion of group in total population to proportion called to serve as
grand jurors. Once has shown substantial under-representation of group, he has made out
prima facie case of discriminatory purpose, and burden then shifts to State to rebut.
7. How do you show discrimination?
a. Identify selection group
b. Show disparity (statistics, etc.)
8. U.S. v. Armstrong: To establish selective prosecution claim, must show similarly situated s of
other races could have been prosecuted but werent.
9. Three bases of discrimination under the 14th Amendment:
a. Express/intentional: strict scrutiny is applied (Loving, Anderson)
b. Intent to discriminate:
i.
Administration of a facially neutral law (Yick Wo, Castaneda)
ii.
Enactment: burden cannot be sustained (Wash., Arlington)
c. Perpetuation of past discrimination: you only have to show invidious racial
discrimination once. (You must show it, but only need to do so once.) Affirmative duty
to remedy past discrimination.
O. Repeals of Remedies/Restructurings of Political Process that Burden Minorities
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1. Hunter v. Erickson: Voters amended city ordinance to prevent any ordinance dealing with racial,
religious, or ancestral discrimination in housing without the approval of the majority of the
voters. Held: racial classification violated EP. Impact fell on the minority. Not a neutral law;
express racial discrimination.
2. Washington v. Seattle School District: school district implemented mandatory busing plan to
reduce school segregation. Legislature adopted initiative, providing that no school board shall
require any student to attend a school other than the school which is geographically nearest or
next nearest the students place of residence. Held: violated EP. While initiative was facially
neutral, it was drawn for racial purposes. Text was carefully tailored to interfere only with
desegregative busing.
3. Crawford v. Los Angeles Board of Education: School districts can (1) take reasonable steps to
desegregate, can adopt busing plans to effectuate desegregation.
4. Romer v Evans: state forbade enactment, adoption or enforcement of any statute protecting
homosexuals against discrimination. Held: invalid. Making it more difficult for one group of
citizens than for all others to seek aid from the govt., was too broad and undifferentiated.
P. Affirmative Action and Benign Discrimination
1. Generally: In some circumstances, preference for minorities and whites may be able to
withstand strict scrutiny.
2. Regents of Univ. of California v. Bakke: Med school reserved 16 out of 100 places in its entering
class for minorities. Held: EP Clause prohibits discrimination regardless of race; it protects both
minorities and the white majority.
a. Benign discrimination to aid minorities at the expense of the white majority is facially
invalid where race is the sole criterion or justification.
b. Where race is the basis of a classification, strict scrutiny is required. In order to justify
the use of a suspect classification, the state's purpose must be both constitutionally
permissible and substantial and the classification must be necessary to the
accomplishment of the purpose. The use of an explicit racial classification upon which
admissions are based, such as quotas, is a violation of the EP Clause.
c. Some consideration of race is permissible, but there has to be identified past
discrimination.
d. A reasonable quota geared to minority population is precisely tailored to advance
compelling interest in correcting identified past discrimination. Overcoming societal
discrimination is not a compelling interest.
e. Educational diversity is a compelling govt. interest.
3. EXAM: if city has affirmative action program and facts show identified past discrimination, for
which the govt. adopting the program is responsible, defend it on that basis, not on diversity,
which is not as strong.
4. Wygant v Jackson Board of Educ: school laid off more senior white teachers in order to retain less
senior minority teachers. Held: board had no compelling interest in remedying societal
discrimination. Burden on innocent parties is too great to constitutional. Layoffs not narrowly
tailored to achieve boards purpose.
5. An important part of precisely tailored is that the racial preference must not unfairly or
unnecessarily trammel the interest of whites.
6. Prior EXAM fact patterns:
a. Taxman v. Board of Ed.: 3rd Circuit held that a policy similar to that in Wygant, above, but
grounded in an explicit rationale of diversity, as opposed to remedying societal
discrimination, violated federal anti-discrimination statutes. The parties settled before the
USSC could review.
b. Wittmer v. Peters: 7th Circuit upheld hiring plan for prison boot camp that used race as
hiring criterion for camp lieutenants. Court rejected a role-model theory, b/c of lack of
substantiation, but held that argument for black lieutenants was backed up by expert
evidence did not rebut.
7. Richmond v J.A. Croson Co: overcoming identified past discrimination is a compelling interest.
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III.
IV.
V.
VI.
VII.
VIII.
IX.

8. It is not enough to show that there is a substantial basis for past discrimination. You also have
to show that the race-based remedy is precisely tailored. One of the factors in this is that
neutral means are not sufficient to remediate.
9. EXAM: A question on affirmative action where interest is overcoming past discrimination has
two issues to discuss:
a. Is there a compelling interest for finding past discrimination
b. If there is, is the remedy precisely tailored?
10. Adarand Constructors v. Pena: Racial classifications are subject to strict scrutiny review and are
constitutional only if they are narrowly tailored measures that further compelling govt. interests.
The court said where the federal govt. is involved, strict scrutiny should not be applied. Instead,
intermediate scrutiny should be applied.
11. Grutter v. Bollinger: U of M Law School admissions program case. Held: EP Clause does not
prohibit this narrowly tailored use of race in admissions decisions to further the school's
compelling interest in obtaining the educational benefits that flow from diversity. School
engaged in an individualized review of each applicant, ensuring that all factors that could
contribute to diversity were considered alongside race. Diversity is a compelling interest.
12. Two compelling interests that justify the use of race-conscious affirmative action:
a. Overcoming past consequences of past discrimination for which the govt. is
responsible, and
b. Diversity in education.
13. Gratz v. Bollinger: admissions guidelines gave 20 points (100 were needed) to every applicant
from underrepresented racial or ethnic minority group. Held: violates EP - use of race in the
admissions policy is not narrowly tailored to achieve universitys asserted interest in diversity.
a. A goal is constitutionally permissible.
b. A quota isnt constitutionally permissible.
History/Intent of Amended 14 Framers
A. Did the framers give minorities benefits that we know about?
1. What are the reasons for advantaging racial minorities?
Representation-reinforcement
History of discrimination/likelihood that laws drawing this line reflect inidious bras
Anti-subordination
Race is arbitrary/irrelevant
Racial distinctions are immoral?
GENDER DISCRIMINATION IMPORTANT & SUBSTANTIAL RELATION TEST
A. Defining the Level of Scrutiny
1. Important and substantial relationship test for evaluating gender-based classifications.
a. Strict scrutiny
Substantial relation Rational basis
b. Compelling
Important
Legitimate
c. Precisely tailored Substantial Relation Rationally related
2. Gender-based classifications must be substantially related to advancing an important govt.
interest. (Between precisely tailored & rationally related.)
3. Reed v. Reed: law preferred males to females when they were equally qualified. A classification
must be important and must rest upon some ground of difference having a fair and substantial
relation to the object of the law. Sex discrimination violates EP.
4. Frontiero v. Richardson: Classifications based on sex are inherently suspect and must be
subjected to judicial scrutiny. A statutory scheme which draws a sharp line between the sexes,
solely for administrative convenience violates EP. Gender based classifications are invalid.
5. Administrative convenience can never justify a gender-based classification.
6. Sometimes administrative convenience can justify a legitimacy-based classification.
7. Craig v. Boren: Classifications by gender must serve important govt. objectives and be
substantially related to achieving those objectives.

8. U.S. v. Virginia: Public schools may not exclude women. States must show that a sex-based govt.
action serves important govt. objectives and that the discriminatory means are substantially
related to the achievement of those objectives.
B. Differences Real and Imagined
1. Geduldig v. Aiello: exclusion of disability that accompanies normal pregnancy and childbirth
from the insurance system does not exclude anyone b/c of gender it is b/c of sex.
Discrimination on the basis of sex is not discrimination on the basis of gender, and doesnt
bring the important and substantial relation test into play. Discrimination on the basis of physical
and biological differences (sex) is more likely to be sustained.
2. Dothard v. Rawlinson: Women were excluded from prison guard jobs that were contact
positions in all-male prisons. Held: upheld. A womans relative ability to maintain order in a
male prison could be directly reduced by her being a woman.
3. Michael M. v. Superior Court: rape law punished male, but not female, party to intercourse when
the female was under 18 and not the males wife. Held: upheld. The gender classification is not
discriminatory, but rather realistically reflects the fact that the sexes are not similarly situated in
certain circumstances. This was b/c virtually all of the consequences of teenage pregnancy fall on
the woman.
4. Rostker v. Goldberg: Military Selective Service Act (MSSA) provision authorized the President to
require the registration of males and not females. Held: upheld. Sexes are not similarly situated.
Women were not available for combat and having them register would be burdensome.
a. If you are govt. lawyer, you defend exclusion of women by arguing that exclusion of
women from front-line combat advances important govt. interest: military effectiveness.
b. Sex-based classification: women can be excluded b/c of biological and physical
differences between men and women. If men are more aggressive than women, it is not
simply a matter of culture.
5. J.E.B. v. Alabama: Active discrimination by litigants on basis of gender during jury selection
violates EP. It is unconstitutional to use gender- and sex-based peremptories.
C. Benign Compensatory Remedial Discrimination
1. Califano v. Webster: classifications by gender must serve important govt. objectives and must be
substantially related to achievement of those objectives.
2. Califano v. Goldfarb: SS gave survivors benefit to dependant spouse of deceased worker,
assumed to be women. Even with preference, women, on average, receive lower SS benefits than
men.
3. Where the actual purpose of the law favoring women is to overcome the present
consequences of past societal discrimination against women as a group, this is
constitutionally permissible.
4. Orr v. Orr: statute provided that only husbands may be required to pay alimony. Held: statute
failed the Craig standard of important substantial relation. It is unconstitutional for the state to
limit alimony to the woman b/c it is over-inclusive. The gender-based classification was not
substantially related to the advancement of that purpose, since the state could determine
dependency on individual basis.
5. Miss. Univ. for Women v. Hogan: Statute that discriminates against men must meet the same
scrutiny test as statutes that discriminate against women. Test which must be applied when a
statute involves gender-based discrimination is whether the discriminatory classification serves
important govt. objectives and whether means employed are substantially related to achievement
of objectives.
6. What is the law relating to gender and sex-based classifications?
a. Gender-based classifications: the govt. cannot classify on the basis of gender, except
where the actual purpose is overcoming the present consequences of societal
discrimination against women/men as a group.
b. Sex-based: when state classifies between men and women, and it can be shown that the
classification relates to physical and biological differences between men and women, the
Court will uphold it.
10

c. Gender based classifications have generally disappeared, while some sex-based

classifications have hung on.
7.
X.

Special Scrutiny for Other Classifications

A. Alienage
1. Standard of Review:
a. Federal govt.: rational basis (it will be constitutional)
b. State govt.: strict scrutiny (it will be unconstitutional)
2. Takahaski v. Fish Game Comn: Court invalidated CAs denial of licenses for commercial fishing
in coastal waters to aliens lawfully residing in CA.
3. Graham v. Richardson: Court ruled classifications based on alienage are inherently suspect and
subject to close judicial scrutiny. State law denying welfare benefits to aliens violates EP. States
cannot deny welfare benefits to aliens.
4. Sugarman v. Dougall: law requiring citizenship as condition of public employment
unconstitutionally discriminated against aliens b/c theyre entitled to shelter of the EP clause.
States cannot exclude aliens from all govt. employment.
5. In Re Griffiths: license to practice law does not place one so close to core of the process as to
make him a formulator of govt. policy. Connection between being an alien and carrying out the
duties of an officer of the court arent closely enough related.
6. Ambach v. Norwick: states may exclude aliens from ranks of public school teachers. Such
classifications inherently suspect and subject strict scrutiny, but in appropriately defined classes
of positions, citizenship may be required as a qualification for office or employment b/c
states have an obligation to preserve "the basic conception of a political community."
7. Bernal v. Fainter: states cannot bar aliens from becoming notary publics.
8. Toll v. Moreno: law that discriminates against aliens lawfully admitted to the country is
impermissible if it imposes additional burdens not contemplated by Congress.
9. Plyler v. Doe: Statute denied free public education to illegal alien children, stressing both the
special status of the children who cant conduct their own status. Held: statute is invalid - illegal
aliens are not a suspect class.
10. Matthews v. Diaz: Congress has no constitutional duty to provide all aliens with welfare benefits
provided to citizens.
11. Hampton v. Mow Sun Wong: Fed. Civil Serv. Comm. regulation barred resident aliens from civil
service employment. Held: denial of liberty without DP. Administrative convenience may
provide rational basis for the general rule.
B. Illegitimacy Important and Substantial Relation test
1. Mathews v. Lucas: If a state gives state support to children, there is no constitutionally sufficient
justification for denying such an essential right to the child simply b/c its parents are not married.
2. Clark v. Jeter: invalidated statute providing that child-support actions for out-of-wedlock children
must be brought before the child turns six. The Court found that the six-year statute of limitations
was not substantially related to states interest in avoiding litigation of stale or fraudulent claims
3. Glona v. American Guar. & Liab. Ins. Co: No rational basis for assuming that if a mother is
allowed recovery in a wrongful death case that the cause of illegitimacy will be served.
4. NJ Welfare Rights Org. v. Cahill: Court invalidated a provision that limited eligibility for a
particular welfare program to otherwise qualified families which consist of a household
composed of two adults of the opposite sex ceremonially married to each other. The
classification denied benefits to illegitimate children while granting benefits legitimate children.
5. Califano v. Boles: upheld a provision of the SS Act that granted mothers benefits to deceaseds
widow or divorced wife but not to mother of his illegitimate child. Court reasoned that program
was not designed for childcare subsidies; instead Congress was limiting category of beneficiaries
to those who suffer economic dislocation upon the death of a wage earner.
6. Miller v. Albright: Court upheld an immigration provision that provides automatic naturalization
for illegitimate children born abroad to US mothers, but establishes procedural barriers for the
illegitimate children of fathers and non-citizen mothers who wish to become US citizens.
11

C.

D.

E.

F.

7. Nguyen v. INS [supplement]: child had committed various crimes. If the child was a citizen he
could not deported, but if the child was not a citizen he could be deported. What about this
discrimination? Court upholds sex-based classifications. Congress can require that more be
done on part of the father b/c the role he takes in out-of-wedlock children.
a. Kennedy said the child normally grows up with mom. Dads may or may not stay with
the children. Kennedy fears that these children will get all the benefits of being a citizen
simply b/c their biological father was American.
b. OConnor dissent: claims Kennedy is using stereotypes that have been condemned in
other cases by the court.
c. EXAM favorite Sedler agrees with OConnor. If the child has American blood that
should be enough to give the child American citizenship. The dissent sees this as gender
discrimination.
d. Adopted child: sometimes a child can be stateless, it happens, international laws frown
upon this.
Mental Retardation rational basis
1. Cleburne v. Cleburne Living Center, Inc: Classifications based on mental retardation will
withstand EP review if they are rationally related to a legitimate govt. purpose. The state's
interest in dealing with and providing for the mentally retarded is clearly a legitimate one.
2. Heller v. Doe: Court applied a much less-stringent form of rational basis review in this case.
Upheld a scheme that allowed involuntary commitment of mentally retarded under less stringent
standard than those employed for involuntary commitment of the mentally ill. Court concluded
that the lesser standard of proof was justified b/c it was reasonably conceivable that violent
behavior by the mentally retarded was easier to predict than such behavior by the mentally ill.
Sexual Orientation rational basis
1. Romer v. Evans: statute that singles out a class of citizens (homosexuals) for disfavored legal
status violates EP. Generally, legislative classifications are constitutional if they bear rational
relation to a legitimate end. However, this statute identifies persons by single trait and denies
them protection across the board.
2. Lawrence v. Texas: Petitioners were adults at the time of the alleged offense, conduct was private
and consensual, they were entitled to respect for their private lives. State cannot demean their
existence by making their private sexual conduct a crime.
Summary of classifications on the basis of identifiable group membership.
1. In the area of classifications on basis of identifiable group membership, rational basis standard
of review must be tied to value judgments the Court makes. Govt. has to justify discrimination
on grounds other than prejudice or morality.
a. Discrimination on the basis of identifiable group membership has to be justified by
some independent reason.
i.
Race (strict scrutiny): has to be a strong justification and precisely tailored.
ii.
Gender (important and substantial relationship test): justifications have to
relate to physical and biological difference or were substantially related to
overcoming societal discrimination against women
iii.
Sexual orientation: in the matter of military, the govt. can advance a
legitimate justification even if its related to discrimination.
iv.
Prejudice: people have a right to be prejudiced. They dont have a right to
discriminate. When prejudice takes the form of law, we have discrimination,
and that is what the govt. can prohibit.
Other Challenged Bases for Discrimination
1. Methodology (3-step methodology applies to all classifications):
a. Identify a favored or disfavored group
b. Ask whether they are similarly situated. If they are not, they have not been discriminated
against.
c. There must be justification for the differential treatment
2. Standard of review: does interest interfered with rise to the level of a fundamental right?
12

a. Fundamental right: compelling & precisely tailored. (Marriage/family,

reproduction, voting, interstate traffic.)
b. Not fundamental right: legitimate & rationally related.
XI.

XII.

FUNDAMENTAL RIGHTS STRICT SCRUTINY

A. Travel: fundamental strict scrutiny
1. Shapiro v. Thompson: right to interstate travel is protected by the Constitution. A law with no
other purpose than to chill the assertion of a constitutional right by penalizing those who choose
to exercise them is unconstitutional unless it is shown to be necessary to promote a compelling
govt. interest.
a. Court made a value judgment that travel was a fundamental right. Once the Court made
this value judgment, the state lost. The purpose is illegitimate b/c the state cant prohibit
or try to discourage people from coming into the state. It cannot deny them welfare
benefits for the purpose of discouraging them from coming into the state. That
undermines the interstate right to travel
2. McCarthy v. Philadelphia Civil Service Commn: regulation requiring employees of the city to be
residents of the city does not impair the right to travel interstate.
3. Doe v. Bolton: To deny non-residents the right to have abortion violates Article IV 2.
4. Saenz v. Roe: Durational residency requirements violate the fundamental right to travel by
denying a newly-arrived citizen the same privileges and immunities enjoyed by other citizens in
the same state, and are therefore subject to strict scrutiny.
B. Welfare and Education not fundamental - rational basis
1. Dandridge v. Williams: MD program gave most eligible families their computed standard of need,
but imposed a maximum limitation on the total amount any family could receive. Held: statute
did not violate EP the state is regulating in the social and economic field, not affecting the
freedoms guaranteed.
2. San Antonio Ind. School Dist. v. Rodriguez: Education is not a fundamental right - its not
explicitly in the Constitution. Court made value judgment that it was not going to use EP to force
significant changes in the way states financed education.
3. Plyler v. Doe: state denied education to illegal alien kids. Held: statute violated EP. Illegal alien
kids cannot affect parents conduct or their own status. Discrimination cannot be considered
rational unless it furthers some substantial goal of state.
C. Medical Care: Abortions fundamental
1. Standard of Review:
a. When state is dispensing benefits rational basis
b. When state is regulating - strict scrutiny
2. Maher v. Roe: States may refuse to provide Medicaid funding for elective or non-therapeutic
abortions even though it gave Medicaid financing for the expenses of ordinary childbirth and
medically necessary first trimester abortions. (Not violative of EP.) Making the alternative to
abortion more attractive by subsidizing it is not the same as placing a direct obstacle in the path to
abortion. The question is whether the regulation impinges upon a fundamental right. Answer:
no. Court then asks whether regulation can be sustained under rational basis test: yes. State has a
strong and legitimate interest in encouraging normal childbirth, and subsidizing costs incident to
childbirth is a rational means of encouraging childbirth.
3. Harris v. McRae: the SS Act established Medicaid program to provide federal financial assistance
to states choosing to reimburse certain costs of medical treatment for needy persons. Held: No
constitutional violation. It did not require a participating state to pay for medically necessary
abortions for which federal reimbursement was unavailable under the new amendment. Funding
restrictions of the amendment did not violate the 1st or 5th Amendments.
The law for GENERAL classifications
A. Fundamental rights: strict scrutiny: compelling govt. interest narrowly tailored. If classification
burdens a fundamental right, strict scrutiny. Not likely to uphold.

13

B. Ordinary rights: rational basis: rationally related to legitimate end. In applying the rational basis test,
the Court will give somewhat more heightened scrutiny to laws and classifications affecting individual
liberty and property rights than it will to economic regulations. More likely to uphold.
I.

II.

STATE ACTION
Introduction
A. Virtually all constitutional guarantees run only against the govt. Exception: 13 th Amendment, which also
runs against private persons. Federal govt. can punish individuals for violating it.
B. Civil Rights Cases: Neither the 13th nor 14th Amendments empowered Congress to pass the Civil Rights
Act of 1875, making racial discrimination unlawful in public accommodations. The Act steps into the
domain of local jurisprudence and lays down rules without referring to any supposed action of the state.
The wrongful act of an individual, unsupported by any State authority is simply a private wrong, or a
crime of that individual. The statute was not authorized under the 13 th b/c the refusal to serve a person in
a public accommodation was no more than an ordinary civil injury and not a badge of slavery.
C. In these cases ask:
1. Is the govt. involved?
2. What, if anything, has the govt. done or failed to do that offends the constitution?
Government Function
A. Smith v. Allwright: 15th Amendment forbade exclusion of blacks from elections conducted by the
Democratic Party of TX, pursuant to party resolution. The right to participate in the choice of elected
officials without restriction by any state b/c of race is not to be nullified by a state through casting its
electoral process in a from which permits a private org. to practice racial discrimination in the election.
1. The democratic party, a private agency, couldnt exclude African Americans from the primary b/c
the partys action was the action of the state.
2. The state was responsible for the exclusion of blacks from the democratic primary b/c the state
gave the power to the political party to hold the primary elections.
B. Terry v. Adams: Blacks were excluded from pre-primary elections of the Jaybird Democratic Association,
an organization of all white voters in Texas. The record showed complete absence of any compliance
with the state law or practice, or cooperation by or with the state. Held: the election was subject to the
15th Amendment. B/c the state gives the political party the power to fix the qualifications for voting in the
primary, the state must be sure the party does not discriminate on the basis of race.
C. Marsh v. Alabama: Managers of company-owned town could not curtail liberty of press and religion of
public. State allowed company to prohibit people from practicing religion, which violated Constitution.
D. Amalgamated Food Employees Union v. Logan Valley Plaza: Court could not enjoin peaceful union
picketing at shopping center against a store located in shopping center. A large privately owned shopping
center was the functional equivalent of the business district in Marsh. Court drew a distinction between
the state actor and the private actor. A privately owned shopping center is a private actor the state has
no obligation with respect to the shopping center. (Overruled by Lloyd.)
E. Llloyd Corp. v. Tanner: a shopping centers refusal to permit antiwar hand billing on its premises was not
state action. Court distinguished Logan Valley: the picketing there was specifically directed to a store in
the shopping center and the pickets had no other reasonable opportunity to reach their audience.
F. Evans v. Newton: testator's will provided for land to be held in trust to be used as a segregated park.
Trust's board brought a suit against city and trustees of the residuary beneficiaries. Board sought to
enforce racial limitations of the will. Held: public character of the park required that it be treated as a
public institution subject to the command of the 14th, regardless of who had title under state law. Tradition
of municipal control of the park was firmly established; thus, the Court could not take judicial notice that
mere substitution of trustees instantly transferred the park from the public to the private sector.
G. Government responsibility
1. What did the state do or fail to that offends the constitution?
2. A private actor can never be a state actor.
H. There is no notion of a govt. function that makes someone a state actor.

14

I. Jackson v. Metropolitan Edison Co. Actions taken by a private business do not necessarily become "state
actions" simply b/c it is a monopoly, b/c it is subject to extensive and detailed state regulation, or b/c it
provides an essential service, or it is a business "affected with the public interest." .
J. The question is: what is the affirmative obligation that the constitution imposes on the state?
III.

State Involvement or Encouragement

A. Shelley v. Kraemer: EP prevents judicial enforcement by state courts of restrictive covenants based on
race or color. B/c the restrictive covenants did not involve any action by state legislature or city council,
restrictive covenant itself did not violate any rights protected by 14 th Amend., since it was strictly a
private covenant. But judicial enforcement of the covenant did qualify as state action. A racially
restrictive covenant, running with the land, is unenforceable. Private discrimination is not subject to
constitutional constraints, nothing could be done about agreement between 2 whites that they wouldnt
sell to blacks.
B. Barrows v. Jackson: Held that an action by a co-covenantor to recover damages from a property owner
who sold to an African-American was barred by EP.
C. Peterson v. Greenville: law forbade restaurants to seat whites and blacks together. Blacks were convicted
of trespass when they were denied service at a lunch counter and did not leave upon request. Held:
convictions cannot stand.
D. Bell v. Maryland: a State, obligated under the 14th Amendment to maintain a system of law in which
Negroes are not denied protection in their claim to be treated as equal members of the community, may
not use its criminal trespass laws to frustrate the constitutionally granted right.
E. Reitman v. Mulkey: If the ultimate effect of a state constitution or statute is to encourage racial
discrimination, it violates the EP Clause of the 14th Amendment and is unconstitutional. While the states
are not required to affirmatively forbid racial discrimination, they cannot foster it.
F. Moose Lodge v. Irvis: Is the issuance of a liquor license alone sufficient state action to invoke the 14 th
Amendment? Held: No - for state action to be found it must be shown that the state, through an exercise
of its power and authority, encouraged or fostered discrimination. Merely granting a permit enabling a
private club to serve liquor to its members and their guests is essentially neutral conduct.
G. Norwood v. Harrison: state lent textbooks to all students in public and private schools, including racially
segregated private schools. Held: s failed to show that any child enrolled in private school, if deprive of
free textbooks, would withdraw from private school and subsequently enroll in the public schools.
Constitution does not permit the State to aid discrimination even when there is no precise casual
relationship b/w state and financial aid to a private school and the continued well-being of that school.
H. Gilmore v. Montgomery: city permitted use of public park recreational facilities by private segregated
school groups and by other non-school groups that racially discriminate in their membership. Held: this
assistance significantly tended to undermine the federal court order mandating a unitary school system in
Montgomery. All generalized govt. services do not, by their mere provisions, constitute a showing of state
involvement in invidious discrimination.
1. What did the govt. do that was unconstitutional? They were using the resources of the state to
facilitate the practice of racial discrimination by private entities.

IV.

Developments in the 80s and 90s

A. Rendell-Baker v. Kohn: states can be held responsible for private decisions only when it has exercised
coercive power or has provided such significant encouragement, either overt or covert, that the choice
must in law be deemed to be that of the state. No constitutional violation: it didnt matter the school was
extensively regulated by the state, b/c the regulation didnt affect personnel. There either has to be (1)
involvement in the challenged action (which there wasnt) or (2) heavily regulated.
B. Flagg Bros. v. Brooks: A mere grant of a private remedy to resolve commercial disputes is not state
action. Before a claim under 1983 is cognizable it must first be established that plaintiff has been
deprived of a constitutionally secured right under color of statute. Majority said no state action unless a
govt. official is involved in the repossession. Majority was wrong.
C. Lugar v. Edmonson Oil Co: statute authorized creditor to file a petition with court clerk, thus obtaining a
prejudgment attachment of a debtors property which was executed by the sheriff. Held: a private partys
15

V.

I.

join participation with state officials in the seizure of disputed property is sufficient to characterize that
party as a state actor for purposes of the 14th Amendment. Here there was joint participation.
D. Edmonson v. Leesville Concrete Co: use by a private litigant in a civil trial of a peremptory challenge to
exclude jurors on the basis of race violated the excluded jurors EP rights. In determining whether a
particular action is govt. in character, it is relevant to examine:
1. The extent to which the actor relies on govt. assistance and benefits,
2. Whether the actor is performing a traditional govt. function, and
3. Whether the injury caused is aggravated in a unique way by the incidents of govt. authority.
E. DeShaney v. Winnebago Dept. Of Social Services: state's failure to protect an individual against private
violence does not violate the substantive DP or liberty rights of the victim. There is no affirmative
obligation. The special relationship was rejected by the majority.
F. Example EXAM FAVORITE: Chief of police adopts a policy: interfering with domestic disturbances
is risky for police officers, which usually happen b/c the woman is being a bitch, so as a policy, the police
wont intervene in domestic situations absent a clear threat of severe physical violence. There was a
situation, the police didnt intervene, and the woman was raped. What if the policy was that they didnt
answer calls in predominantly black neighborhoods? It is substantively unconstitutional.
REVIEW of STATE ACTION
A. The action of a private entity can NEVER be state action for constitutional purposes.
B. Is the govt. involved?
C. What has the govt. done or failed to do that offends the constitution?
1. The clearest case is when there is govt. involvement with or facilitation of the action alleged to
be unconstitutional.
a. Moose Lodge, where the bylaws stated it.
b. In Shelley, what the govt. did that offended the constitution was to adopt common law
rules that were racially discriminatory on their face.
c. Evans, where govt. operated a park on a discriminatory basis.
d. Brentwood, where there was entwinement.
2. Otherwise there has to be an affirmative obligation, as in the situations below.
a. Voting
b. Municipal governance
c. Utility monopoly
d. Govt. property (Burton)
e. Jury
FREEDOM OF EXPRESSION
What Speech is Not Protected?
A. Generally
1. Sometimes fed. govt. may be able to justify a restriction on free speech relating to fed. powers.
2. Sedlers article: we give more protection to the freedom of speech than is given by other
democratic countries and international laws. Equality and privacy fail in the 1 st Amendment
context; they are subordinate to the value of freedom of expression.
3. Speech pursued in the context of committing a crime is not allowed.
4. 1st Amendment protects freedom of speech, not all verbal acts.
5. Limitations on the freedom of speech that the govt. may restrict consistent with the First
Amendment: reasonable time, place, and manner restrictions. If someone wants a parade down
Woodward Avenue, the govt. doesnt have to allow it b/c it would be too big of a burden, trying
up traffic, etc. More often, cities do permit parades, but they regulate the time, place and manner
of the parades. Such a restriction does not abridge freedom of speech b/c it merely regulates.
6. There are two basic questions involved in analyzing freedom of speech questions:
a. Is the expression speech for purposes of the 1st Amendment, or is it an unlawful,
verbal act?
b. Is the limitation permissible under the 1st Amendment?
7. Function of the 1st Amendment:
16

8.

9.

10.

11.
12.

13.

14.

15.

a. Expression of ideas: we have a right under our Constitution to express ourselves and say
what we want.
b. Public information function: the right of the speaker to speak is often the right of the
public to receive the information.
c. Dissent and social change function: people working together can try to bring about
fundamental (or limited) change in American society.
Sedler article READ
a. Concept of chilling effect, principles, doctrines, and balancing subsidiary doctrines.
b. Example: If the KKK wants to have a parade down Woodward, and they applies to the
Chief of Police to do so. Parades can only be on holidays and Sundays. They want the
parade on Easter Sunday. The Chief refuses. Is that constitutional? No, b/c its
prohibited, not regulated. Why cant the govt. prohibit this message of hatred? Ideas of
hatred are entitled to the same protection as any other idea/doctrine. The only way the
Chief could prohibit the parade is to prohibit all parades.
c. The govt. cannot prohibit or regulate speech b/c of its message.
Court upheld prosecutions of anti-war demonstrators, developing clear and present danger
doctrine. The question is whether the words are used in such circumstances that they will bring
about the substantive evil that we try to prevent.
a. Today, advocating an illegal action is protected by the 1st Amendment until the point at
which it incites or produces (or is likely to incite or produce) imminent lawless action.
Clear and Present Danger: The only time the govt. can regulate speech is when it is a clear and
present danger. A threat to a judge is not a clear and present danger. A newspaper criticizing a
judge is protected speech.
a. Expressing political speech is okay.
b. Lawyers can publicly criticize judges. The Model Rules say that ethically this is
prohibited, but those rules are unconstitutional under the 1 st Amendment.
A Modern Restatement
Brandenburg v. Ohio: guarantees of freedom of speech and freedom of press 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 produce
or incite such action.
a. The clear and present danger test was reformulated in this case. The govt. can only
prohibit speech that advocates an illegal position if it incites lawless action. Test is
difficult for the govt. to meet.
b. The Court did not hold, as it could have, that what Brandenburg did was protected by the
1st Amendment. Instead, the Courts analysis focused only on the language of the Ohio
statute. The Court said the statute was unconstitutional b/c it defined the crime in terms
of mere advocacy, not distinguished from incitement of a lawless action.
c. Doctrine Court applied: if it is void on its face (only looking to the language of the law.)
Void on its face doctrine (overbreadth)
a. A law can be challenged on its face for being overbroad; including constitutionally
protected expression.
b. This doctrine comes from the chilling effect concept. (See Sedlers article.)
c. Laws applicable to acts of expression can be challenged on their face without regard to
whether the activity of the assailant is constitutionally protected.
Hess v. Indiana: Antiwar demonstrators blocked a public street. Cops moved them to the curbs.
As cop passed him, appellant stated loudly, Well take the fucking street later. He was
convicted of disorderly conduct b/c of tendency to produce violence. Held: statement was
insufficient to punish him for it. It could not be said that appellant was advocating any action and
there was no evidence that words were intended to produce imminent disorder.
NAACP v. Claiborne Hardware Co: remarks of Evers might have been understood as inviting
violence, but stated that when such appeals do not incite lawless action, they are protected
speech.
17

16. Communist Party of Indiana v. Whitcomb: Court invalidated a statute denying political party or its
candidates access to the ballot unless the party filed an affidavit that it does not advocate the
overthrow of local, state or national govt. by force or violence. The required oath violated the
principle of Brandenburg the principle applied not only to attempted denials of public
employment, bar licensing, and tax exemption, but also to ballot access denials. The states
position was flawed in that it furnished access to the ballot on the basis of believing in something.
17. A true threat is not protected speech. The govt. cannot prohibit speakers who advocate sex
between men and boys, men and girls, or men and animals. The fact that something is illegal
does not mean state can prohibit advocacy of illegal conduct.
B. REPUTATION AND PRIVACY
1. Emotional Distress
a. Hustler Magazine v. Falwell: Hustler featured Falwell in a parody of liquor ads. Falwell
was depicted as having a drunken incestuous rendezvous with his mother in an outhouse.
Held: Public figures and officials offended by a media parody could not recover for the
tort of intentional infliction of emotional distress without a showing of malice.
b. NY Times Test: finds its source in the chilling effect concept. Where defamation action,
privacy action, etc., brought by a public figure, there can be no recovery unless speech
contains facts that are knowingly false or made with reckless disregard for truth or falsity.
c. Speech is protected regardless of how hurtful it may be.
d. Dallas Cowboys Cheerleaders v. Pussycat Cinema: 2nd Circuit permitted injunction
against exhibition of film Debbie Does Dallas on the ground that it infringed on
trademarked uniform of Dallas Cowboy Uniforms. Movie involves women performing
sexual services for a fee so they can go to Dallas to become Texas Cowgirls.
2. Disclosure of Private Facts
a. Florida Star v. B.J.F: FL enacted a statute prohibiting the publication of the names of
rape victims. FL Star, having obtained the name of rape victim B.J.F. from a police
report, published her name. B.J.F. brought an action alleging invasion of privacy. A jury
awarded $100,000. Held: A state may not prohibit a newspaper from publishing the
name of a rape victim when it obtains the information lawfully.
i.
1st Amendment arguments are very close to strict scrutiny arguments. The govt.
has to show a narrow specificity. Here the law was an absolute prohibition,
which is counter to the narrow specificity rule. See footnote 23 in Sedlers
article. Court is more likely to find it unconstitutional under narrow specificity
principle when there is absolute prohibition.
C. OBSCENITY
1. The Search for a Rationale
2. Pornography is pure speech and it comes within the protection of the 1st amendment.
3. Obscenity (includes child porn) is not considered speech for 1 st Amendment purposes.
4. Roth v. U.S. AND Alberts v. California: Obscenity is not within the area of constitutionally
protected speech or press.
5. Kingsley International Pictures. v. Regents: NY denied license to exhibit the film Lady
Chatterleys Lover pursuant to a statute requiring such denial when a film portrays acts of sexual
immorality as desirable, acceptable or proper patters of behavior. Unconstitutional.
6. Stanley v. Georgia: Court reversed conviction for knowing possession of obscene matter, based
on 3 reels of obscene films found in Stanleys home. Constitutional right to receive
information/ideas, regardless of social worth, is fundamental to free society.
7. A Revised Standard
8. Miller v. California: Material is obscene and not protected by the 1st Amendment if: (1) average
person, applying contemporary community standards, would find that the work, taken as a whole,
appeals to the prurient interest; (2) work depicts in a patently offensive way sexual conduct
specifically defined by the applicable state law; and (3) work, as a whole, lacks serious literary,
artistic, political, or scientific value.
9. Vagueness and Overbreadth: An Overview
18

10. The law can be challenged on its face. Look to terms of the law itself. Law is overbroad when
its terms are clear and they include in their prohibition protected expression or conduct.
11. Substantial Overbreadth Principle law prohibits partisan activity of office holders. A civil
service employee is being charged for soliciting contributions for his political party. He argues
statute is overbroad. Court developed principle of substantial overbreadth, a slight qualification
of the overbreadth doctrine. It is not enough to say the law is overbroad, you must allege and
show that it is substantially overbroad.
a. Challenging law on its face is your best stance instead of challenging on how its applied.
If you lose on its face you need to argue that it is unconstitutional as applied to activity.
b. Exam if there is a ques. for challenge of law on its face he will tell us that. If question
says to decide if the law is valid on its face and if it is constitutional as to the activity
conveyed you need to answer both parts even if the law is unconstitutional on its face.
D. Fighting Words, Offensive Words and Hostile Audiences
1. Fighting Words: Chaplinsky v. New Hampshire: Fighting words, which by their utterance inflict
injury or tend to incite an immediate breach of peace, can be prohibited.
a. Test: what men of common intelligence would understand as words likely to cause an
average addressee to fight.
b. One to one invitations of a fight are not protected by the 1st amendment.
2. Hostile Audiences: Terminiello v. Chicago: dressing up as Nazis and marching is not fighting
words. It is not one to one. If one Nazi went up to a person and shoved the swastika in their
face, it might be one to one.
3. Offensive Words: Cohen v. California: state cannot bar the use of offensive words just b/c such
words are inherently likely to cause a violent reaction or b/c the state wishes to eliminate such
words to protect the public morality.
a. What if a guy walks around with a sign that says, Fuck the draft. There is a
constitutional right to say fuck. The state cannot prohibit the use of this unseemly
expletive in order to control discourse.
b. Gooding v. Wilson: University can justify prohibitions on profanity in the classroom b/c it
is reasonable time, place and manner restriction. Once you leave class it cannot
prohibit.
E. Should New Categories By Created?
1. Harm to Children and the Overbreadth Doctrine: Child porn is not considered speech under
the 1st Amendment.
a. NY v. Ferber: Can a state prohibit the dissemination of material which shows children
engaged in sexual conduct regardless of whether such material is obscene? Held: upheld
the conviction of a seller of films depicting young boys masturbating. Court determined
states are entitled to greater leeway in regulation of pornographic depictions of children:
b. Simon & Schuster v. Members of NY State Crime Victims Bd: Court struck down a law
requiring that income derived from works in which individuals admit to crime involving
victims be used to compensate victims. Court said, state has a compelling interest in
compensating victims from fruits of the crime, but little if any interest in limiting such
compensation to the proceeds of the wrongdoers speech about the crime.
c. Massachusetts v. Oakes: Mass. prohibited adults from posing or exhibiting nude children
for purposes of photos, publications, or pictures. Exempt from this were bona fide
scientific or medical purposes. The court declared statute overbroad. After cert was
granted, Mass. added a lascivious intent requirement to the statute and eliminated the
exemptions. Held: Court refused to entertain overbreadth challenge and voted to remand
the case for determination of the statutes constitutionality as applied. Ordinary nudity
of kids is not child porn. Only children engaging in something sexual is pornography.
d. Ashcroft v. Free Speech Coalition: Child Pornography Prevention Act of 1996 (CPPA)
prohibits images that appear to be, of a minor engaging in sexually explicit conduct or
marketed in a way that conveys the impression that is depicts a minor engaging in
sexually explicit conduct. Held: ban on virtual child pornography was
unconstitutionally overbroad since it proscribed speech which was neither child
19

pornography nor obscene and thus abridged the freedom to engage in a substantial
amount of lawful speech. The visual depiction of teenage sexual activity was a common
theme in acclaimed artistic works and a fact of modern society, and the CPPA unlawfully
prohibited speech which recorded no crime and created no victims.
e. Osborne v. Ohio: OH prohibited possession of material showing a minor in a state of
nudity, subject to exceptions. Osborne was convicted for possessing photographs of a
nude male adolescent in a variety of sexually explicit poses. OH Sup. Ct. narrowed
statute to apply only to depictions of nudity involving a lewd exhibition or a graphic
focus on the genitals. Held: Court reversed. Although Court found the statute was
constitutional b/c of the state's compelling interest in safeguarding minors and the court
could narrow the statute to avoid overbreadth, the Court held the DP Clause required the
state to prove each element of the statute to sustain a conviction.
2. Harm to Women: Feminism and Pornography
a. American Booksellers Assn v. Hudnut: city enacted ordinance defining "pornography" as
a practice that discriminated against women. The ordinance did not refer to the prurient
interest, to offensiveness, or to the standards of the community. Held: Seventh Circuit
affirmed holding. Ordinance discriminated on the ground of the content of the speech.
i.
Overbreadth: the ordinance did not have an exception for artistic, literary,
political, or educational work. It didnt specifically relate to only depictions of
pornography that were obscene.
ii.
It was void on its face for overbreadth b/c it wasnt limited to obscenity. Void
on its face for overbreadth b/c it uses a different definition of porn that the
Court does in Roth-Miller. Even if the law were prohibited b/c of obscenity, it
would still be unconstitutional b/c it would violate notion of content neutrality.
b. What is the difference between obscenity and pornography?
i.
Obscenity: a category of pornography that appeals to a prurient interest that
exceeds customary limits of candor in the community and has no literary,
artistic, or political value.
ii.
Pornography: everything else dealing with sex, constitutionally protected.
c. Isnt above distinction violative of content neutrality? Yes, but USSC said that is okay.
3. Racist Speech Revisited: The Nazis
a. Collin v. Smith: Nazi group planned to march in front of village hall. City obtained
preliminary injunction. After courts refused to stay the injunction pending appeal, the
Court ordered a stay. However, the injunction was subsequently reversed. s enacted
three ordinances to prohibit the demonstrations. After s application for a permit was
denied, the court reviewed the evidence and granted s relief. Held: 1st Amendment
meant that govt. had no power to restrict expression b/c of its message, its ideas, its
subject matter, or its content and affirmed the judgment. In particular, the court
determined the ordinance, which prohibited dissemination of material that promoted
hatred towards persons on the basis of their heritage, could not be sustained as obscene
b/c the material did not have erotic content.
b. Republican Party v. White: rule prohibited judges from announcing their views on
disputed legal and political issues. Held: Unconstitutional b/c it prohibits speech and it
burdens a category of speech. Once the state makes a choice to elect its judges, it cannot
deny the voters information that voters might consider relevant to the election. The 1 st
Amendment does not permit the state to achieve its goal by leaving the principles of
election in place while prohibiting the judges from speaking.
II.

Distinguishing between Content Regulation and Manner Regulation: Unconventional Forms of

Communication
A. Generally: Special first amendment questions are often said to arise by regulation of the time, place, and
manner of speech as opposed to regulation of its content.

20

1. 1st Amendment protects expression that is pure speech and conduct: expression, pure speech,
conduct, symbolic speech, Reasonable Time, Place, and Manner Doctrine, content neutrality
viewpoint category exception: undesirable secondary consequences, category neutrality.
2. U.S. v. OBrien: Where conduct is composed of speech and non-speech elements, the speaker can
invoke his freedom of speech rights to defend against unwarranted govt. interference. What must
be determined is whether attempted regulation of the nonspeech element also impermissibly
inhibits the speech aspect. An incidental restriction on speech can be justified where govt. can
show a substantial interest in furthering a constitutional power which is not directed at
suppression of speech.
a. Court came up with a new doctrine to uphold this: regulation cant be based on content.
b. Govt. has a sufficiently important govt. interest in regulating the conduct. It is an
incidental consequence on speech.
3. Texas v. Johnson: govt. may not criminalize desecration of the American flag as an act of protest.
It is an act of expression, protected under the First Amendment. Any restriction on such
expression requires an interest unrelated to stifling such expression. The law prohibiting flag
burning is unconstitutional.
a. What took this case out of the symbolic speech doctrine? Regulation was directed at
preventing the message of this kind of speech.
b. Whenever a law regulating expression contains an exception, talk about content
neutrality.
4. U.S. v. Eichman: Congress passed the Flag Protection Act, which attached criminal penalties to
the knowing mutilation, defacement, burning, maintaining on the floor or ground, or tramping
upon any flag of the US. Held: invalid. The mere destruction or disfigurement of a particular
physical manifestation of the symbol, without more, does not diminish or otherwise affect the
symbol itself in any way.
5. Clark v. Community for Creative Non-Violence: CCNV was holding demonstration in a park. The
park authorized erection of 2 symbolic tent, but denied request that demonstrators be permitted to
sleep in the tents. The park permits camping only in campgrounds designated for that purpose.
Held: Court rejected CCNVs claim that regulations could not be constitutionally applied against
its demonstration. Symbolic expression of this kind may be forbidden or regulated if conduct
itself may constitutionally be regulated, if regulation is narrowly drawn to further a substantial
govt. interest, and if the interest is unrelated to the suppression of free speech.
a. Regulation was content neutral nobody could tent in that area. Govt. didnt want
people to tent there. If they made an exception for this protest, they would have to allow
everyone to do so.
b. Regulation only denied protestors the opportunity to protest in particular place and
manner.
6. Arcara v. Cloud Books, Inc: NY law authorized forced closure of a building for 1 year if it was
used for lewdness, assignation or prostitution. Complaint alleged that prostitution and sexual
activities were occurring at bookstore. Complaint called for closure of the building for 1 year.
Held: closure remedy did not require any 1st Amendment scrutiny. The sexual activity carried out
manifested absolutely no element of protected expression. It didnt matter that the closure order
would require owner to move their business to another location.
7. Virginia v. Hicks: Redevelopment and Housing Authority barred Hicks from trespassing on
property where public low-income housing existed in the absence of permission from the
manager of the housing project. Held: bar was not substantially overbroad since it prevented a
wide range of conduct, and that even if Hicks wanted to enter the property to speak or leaflet, the
bar would properly be applied.
III.

Is Some Protected Speech Less Equal Than Other Protected Speech?

A. Near Obscene Speech
1. Young v. American Mini Theatres: "The mere fact that the commercial exploitation of [certain]
material protected by the 1st Amendment is subject to zoning and other licensing requirements is
not a sufficient reason for invalidating [such requirements]." The mere fact that the commercial
21

exploitation of [certain] material protected by the First Amendment is subject to zoning and other
licensing requirements is not a sufficient reason for invalidating [such requirements].
a. Ordinary theatres and bookstores had to comply with ordinary zoning laws, but there
were special restrictions on theaters and bookstores that presented material emphasizing
certain sexual activities and anatomical areas.
b. Sedler suspects that most of the films being shown in the adult theatres would be obscene
under the Roth-Miller test, but city didnt ban that. It simply said that they have to spread
out. But, this is a category regulation only a certain kind of movies were regulated by
the zoning law. However, it was a reasonable time, place, and manner regulation.
c. Whenever law violates viewpoint neutrality, Court has held that it violates 1 st Amend.
There is another component category neutrality, where law doesnt distinguish between
viewpoints, but treats one category of speech differently from another.
2. Schad v. Mt. Ephraim: Court invalidated an ordinance that permitted adult theatres and
bookstores, but excluded live entertainment from its commercial zone. Court found that
ordinance was not narrowly drawn to serve a sufficiently substantial state interest. There was no
evidence to show that the entertainment was available in nearby areas.
3. Renton v. Playtime Theatres, Inc: ordinance prohibited adult motion picture theatres from locating
within 1,000 feet of any residential zone, church, park, or school, which excluded such theatres
from about 94% of the land in the city. Held: Court upheld the ordinance b/c it did not ban adult
theatres altogether, it merely provided that such theaters may not be located within 1,000 feet of
an residential zone, etc. The ordinance is properly analyzed as a form of time, place, and manner
regulation.
a. Lower courts have upheld bans on liquor in adult entertainment facilities on ground that
the state can reasonably conclude that there will be undesirable secondary consequences
from permitting liquor. Court is ambivalent to the adult entertainment establishments.
b. The state has a valid interest in regulating these establishments to prevent undesirable
secondary consequences. Once Young established this precedent, an exception from
content neutrality, the cities have a lot more leeway in regulating them separately.
4. Summary
a. Beginning with Young, Court holds that the 1st Amendment permits the state to single out
adult entertainment facilities for special treatment in order to protect undesirable
secondary effects that could be associated with such facilities.
b. Lap dancing: state has valid interest in prohibiting the sexual conduct involved.
c. 1st Amendment protects the nude dancing itself.
d. 1st Amendment protects the core message of sexuality. State cant prohibit that, but it can
regulate the adult entertainment business and the performance extensively to decrease
undesirable secondary effects.
5. Barnes v. Glen Theatre, Inc: law prohibited the knowing or intentional appearing in a public place
in a state of nudity. Law was being invoked against female dancers in adult entertainment. Cops
took the position that the dancers had to wear pasties and g-strings. Held: statute could
constitutionally be applied. The Court applied OBrien, characterizing the statute as a public
indecency statute, and concluded that the interests justified the statute.
a. The 1st Amendment is more sympathetic to serious works than it is to nude dancing, even
though nude dancing does come within the protection of the 1st Amendment.
6. Ernie v. Paps A.M.: Paps A.M. operated Kandyland, featuring nude erotic dancing by women.
To comply with ordinance, dancers had to wear pasties and g-strings. Paps sought declaratory
relief and a permanent injunction. Held: Court upheld application of the ordinance to prevent
nude dancing. The ordinance was content-neutral b/c it regulated conduct alone, did not target
nudity that contained an erotic message, and petitioner's interest in preventing harmful secondary
effects associated with adult entertainment establishments was not related to the suppression of
the exotic message conveyed by nude dancing.
B. Commercial Speech: Commercial speech is advertising. It proposes a commercial transaction, as
opposed to speech that expresses an idea.
22

1. Virginia v. State Board of Pharmacy v. Virginia Citizens Consumer Council: freedom of speech
extends to recipients AND sources of speech; and consumer's interest in free flow of advertising
information brings "commercial speech" within the protection of 1 st Amend. The govt. cannot
justify a ban on advertising on ground that it is justifiable that people be kept in ignorance.
2. Bigelow v. Virginia: held unconstitutional state law prohibiting anti-abortion materials. It was
still commercial speech. Advertisement is subject to analysis under commercial speech doctrine.
Advertisements have to be defended on their own merits there is value in commercial speech.
3. Summary
a. Commercial speech, in some circumstances, receives less protection than noncommercial speech.
b. Truth in advertising is more verifiable.
c. There need not be a concern with chilling effect b/c advertiser needs to advertise anyway.
4. Linmark Associates v. Willingboro: City was banning For Sale signs b/c it did not want to
encourage whites to leave the neighborhood when there was an influx of blacks. The problem
with banning such signs is that the city is depriving people from information. The 1 st Amendment
provides the people with information.
5. Ohralik v. Ohio State Bar: Under Ohio PR Code lawyers are not allowed to recommend
themselves to anyone who has not sought their advice regarding employment of a lawyer. Held:
upheld provision b/c a state may forbid in-person solicitation of clients by lawyers for pecuniary
gain. State does not lose its power to regulate commercial activity deemed harmful to public
whenever speech is a component of activity. State has a great interest in regulating lawyers.
6. In re Primus: After advising alleged sterilized women of their rights, ACLU lawyer initiated
further contact with one of the women by writing her a letter informing her of the ACLUs
willingness to provide free legal representation for women in her situation and of the
organizations desire file a lawsuit on her behalf. Held: state could not constitutionally discipline
this lawyer. Although a showing of potential danger may suffice in the former context, appellant
may not be discipline unless her activity in fact involved the type of misconduct at which broad
prohibition is said to be directed. Record does not support appellees contention that undue
influence, overreaching, misrepresentation, or invasion of privacy actually occurred in this case.
7. Cincinnati v. Discovery Network: Cincinnati permitted 1,500-2,000 news racks throughout the
city for publications not classified as commercial speech, but refused to allow an additional 62
news racks that contained two publications classified as commercial speech. Held:
discrimination violated 1st amendment: city underestimates the value of commercial speech.
8. Exceptions to category-neutrality (can regulate in some categories but not others):
a. Adult entertainment
b. Commercial speech (can allow political speech and ban other speech)
9. Central Hudson Gas & Elec. Corp v. Public Serv. Commn:
a. Central Hudson test for commercial speech:
i.
Does speech concern lawful activity and is it not misleading? If yes, it
qualifies as a commercial.
ii.
In order to prohibit it, govt. must show a substantial govt. interest
iii.
Ban must directly advance the govt. interest asserted.
iv.
No more extensive than necessary.
10. Posados de Puerto Rico Associates v. Tourism Co. of P.R.: Puerto Rico law banned casino
advertising. Legislature passed that law b/c they didnt want their poor residents to spend their
money in the casinos. Rehnquist said b/c the state could prohibit casino gambling, it can allow
casino gambling and prohibit advertising of it.
11. 44 Liquormart v. Rhode Island: Complete bans on truthful commercial advertising are
unconstitutional. This case effectively overrules Posados. The state does not have a broad power
to suppress truthful advertising for paternalistic purposes.
12. Rubin: Ban on the display of alcoholic content on beer labels. The purpose for this ban was to
prevent people from getting this information. The govt. could regulate the alcoholic content; it
could prohibit the manufacture of beer beyond a 6% content, for example. The govt. is relying on
the substantial interest test there are justification for keeping people in ignorance.
23

13. Edge: Upheld ban on lottery advertising in a state where lotteries werent illegal. Govt. has a
substantial interest in ensuring compliance with its lottery laws. Its audience included residents
from a neighboring state.
14. Thompson v. Western States Medical Center: Court invalidated advertising restrictions on
compounded drugs not subject to FDA standard drug approval requirements in part by concluding
that the govt. did not meet its burden to show that less restrictive alternatives were unavailable.
15. Lorillard Tobacco Co. v. Reilly:
a. Regulation had three parts:
i.
Outdoor advertising could not be in 1000-foot radius of public schools.
ii.
Indoor advertisings must be more than 5 feet off the ground
iii.
Cigarettes must be located behind the counter.
b. Ban could be struck down under Central Hudson
16. The Court is more likely to invalidate an absolute prohibition on speech. Does the govt. have
more leeway in regulating the time, place and manner of commercial speech than noncommercial speech? The reasonable time, place and manner doctrine interacts with the
commercial speech doctrine. In effect, the Court may be applying the commercial speech
doctrine to determine if the regulation meets the test of a reasonable time, place, and manner.
C. Conceiving and Re-conceiving the Structure of the 1st Amendment: Hate Speech Revisited Again
1. R.A.V. v. St. Paul: govt. may not proscribe some fighting words and permit others, where the
distinction is based on content or viewpoint.
a. The main controversy about 1st Amendment today is that we allow, b/c of principle of
content neutrality, what otherwise would be considered bad speech. In international
human rights norms, distinctions are made between good speech and bad speech.
b. Even thought obscenity is not protected speech, it is still speech in the effect that if the
govt. is going to prohibit it, it cant draw content distinctions between the message. The
govt. cannot ban obscenity that is the sexual subordination of women while allowing
obscenity that is the graphic depiction of sexual equality. The reason for that is that
obscenity is pure speech. Carving out an exception for pure speech doesnt alter the fact
that it is still speech. Viewpoint neutrality applies to that regulation.
c. The cross burning law, as it was written, is void on its face for overbreadth. A state court
can give a law a narrowing construction, which means rewrite it. And that is what the
Court did here. It is void on its face for overbreadth. When what is being regulated is
speech, content neutrality applies at least to the viewpoint component.
2. Dawson v. Delaware: At sentencing phase the prosecution sought to introduce evidence that the
was a member of the Aryan Brotherhood, which was stipulated to be a white racist gang. Held:
admission violated the 1st Amendment b/c the evidence proved nothing more than s abstract
beliefs. The fact that the penalty is enhanced b/c of beliefs does not make it violative of the 1 st
Amendment. An ethnic intimidation law is not considered to violate the 1 st Amendment assuming
it is interpreted to require a true threat.
3. Wisconsin v. Mitchell: WI permitted a sentence for aggravated battery to be enhanced on the
ground that the white victim had been selected b/c of his race. Held: not a violation of the 1st
amendment b/c the statute was aimed at conduct, not speech. A chilling effect on speech was
unlikely, that the focus on motive was no different than that employed in anti-discrimination
statutes, and that bias-inspired conduct is more likely to provoke retaliatory crimes, inflict distinct
emotional harms on their victims, and incite community unrest.
4. Virginia v. Black: It was a felony to publicly burn a cross with the intent to intimidate any person
or group of persons. VA added any such burning shall be prima facie evidence of an intent to
intimidate. Black led a KKK rally, which a cross was burned after a series of speeches marked by
racial hostility. Another case, Elliot and OMara attempted to burn a cross at the residence of a
black and the jury was instructed that the Commonwealth had to show the intent to burn the cross
and the intent to intimidate. Held: Upheld cross burning with intent to intimidate provision and
struck down the prima facie evidence provision as interpreted by the jury instruction. The
provision chilled constitutionally protected political speech b/c of the possibility that a State will
24

prosecute and potentially convict somebody engaging only in lawful political speech as the
core of what the 1st amendment is designed to protect
a. There is a heavy burden if the law prohibits intent to intimidate. The state would have to
show that the whites burned the cross on the blacks lawn with the intent to intimidate. If
the intent was to express their idea that whites are superior, that is protected speech.
b. If the law requires an intent to intimidate, the law is content neutral. It wouldnt matter
whether the threat occurred from a burning cross, from words alone, etc. This is an
unprotected verbal act.
c. This case is another exception to category neutrality. When dealing with unprotected
speech, the govt. can make category distinctions but not viewpoint distinctions.
IV.

Prior Restraints
A. Foundation Cases
1. Prior restraint is prohibiting speech before it even occurs. It is a legal action, typically an
injunction, that prohibits the speech prior to its occurrence. It may have a chilling or freezing
effect on speech. It has always been treated differently by the Court.
2. Because prior restraint has a freezing effect, the prior restraint doctrine is very stringent. The
govt. has a heavy burden of justification of the prior restraint.
3. Licensing
a. Lovell v. Griffin: Court invalidated ordinance prohibiting distribution of handbooks,
advertising or literature without obtaining written permission of City Manager. Void on
its face. There were no standards - unconstitutional.
b. Lakewood v. Plain Dealer Publishing: Court invalidated ordinance granting Mayor power
to grant or deny annual permits to place news racks on public property. If you are going
to have news racks on public property and youre going to allow some and not others,
you have to have a standard. The restriction here was category based. This comes within
the requirement of neutral, objective, and definite standards.
c. Watchtower Bible & Tract Society v. Stratton: Village ordinance required door-to-door
advocates or distributors of literature to register with the mayor. Held: unconstitutional
b/c it hinged on speakers anonymity. Ordinance wasnt narrowly tailored to villages
interest of getting rid of unsolicited distributors.
4. Injunctions
a. Near v. Minnesota: state statute which authorizes previous restraints on publication
violates the liberty of the press guaranteed by the 14 th Amendment if such publication
relates to the malfeasance of public officials. It is the chief purpose of the constitutional
guaranty of freedom of press to prevent previous restraint on publication. Only in
exceptional circumstances may previous restraints be imposed, such as where a govt.
seeks to prevent actual obstruction to its recruiting service or the publication of the
sailing dates of transports or the number and location of troops. Obscene publications,
and incitements to acts of violence or the overthrow by force of orderly govt., may be
enjoined. However, previous restraint on a publication which seeks to expose the
malfeasance of public officials is prohibited by the 14th Amendment. Public officials
have recourse against false accusations under the libel law. Requiring newspapers to
present proof of their good intentions is merely an additional step to a complete system of
censorship.
i.
This authorized the court to issue an injunction against the publication of a
malicious, scandalous, and defamatory newspaper. That was unconstitutional
b/c it was an injunction (prior restraint doctrine).
ii.
There is a heavy burden to show justification for particular prior restraint.
iii.
Because of freezing effect of an injunction, there must be justification.
b. Walker v. Birmingham: s were convicted for violating an ex parte injunction issued by
AL court enjoining them from engaging in street parades without a municipal permit
issued pursuant to the citys parade ordinance. s challenged conviction on 1 st
Amendment grounds. Held: Court affirmed contempt convictions. Because petitioners
25

neither moved to dissolve the injunction nor sought to comply with the citys parade
ordinance, their claim that the injunction and ordinance were unconstitutional did not
need to be considered. Alabamas invocation of the collateral bar rule was not itself
unconstitutional.
B. Prior Restraints, Obscenity, and Commercial Speech
1. Prior Restraint Doctrine
a. Licenses: treated as a variant of void on its face doctrine. Prior restraints have a freezing
effect. When the govt. seeks an advance prohibition on speech, prior restraint doctrine
comes into play.
b. Validity of licensing laws: law must be narrow, objective/neutral and definite standard
controlling discretion of licensing division.
2. Kingsley Books v. Brown: State court decree enjoined a publisher from further distribution of 14
booklets the state court found obscene. Held: upheld decree. A bookseller should not fear that
his offer for sale of a book may, without prior warning, subject him to a criminal prosecution.
The ordinance interferes with a books solicitation of the public. The ordinance withholds
restraint upon matters not already published and not yet found to be offensive.
a. Why was this not an unconstitutional prior restraint? Injunction was against printed
matter and the printed matter was obscene.
b. Once something has been adjudicated to be obscene, then it follows that it is not
protected speech!
c. Whenever the govt. acts against expression, whether protected or not, it has to follow
certain procedures to be sure that there is no chilling or freezing effect.
d. There had to be a declaration of obscenity in the adversary proceeding to ensure that the
injunction was not enforced against anything protected.
3. Times Film Corp. v. Chicago: Local govt. may validly protect citizens from exhibition of obscene
material. Obscenity is not protected speech, thus there is no basis for holding invalid an
ordinance imposing prior restraint on the publication of obscenity.
a. This case is not covered closely b/c after Freedman there really cant be restraints on
movies. There used to be restraints on objectionable movies.
4. Freedman v. Maryland: Court set out procedural safeguards designed to reduce dangers
associated with prior restraints of films. It required that procedure must assure a prompt final
judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a
license, that censor must promptly institute proceedings, that burden of proof to show that the
speech in question is unprotected must rest on the censor, and that the proceedings be adversarial.
a. This brought an end to censorship.
b. Freedman was extended to postal stock orders, obscene material orders, etc.
5. Carroll v. President and Commissioners: 1st Amendment precludes issuance of ex parte injunction
against speech. If city wants to get an injunction against violation of ordinance, there has to be a
hearing. This is a requirement of 1st Amendment DP.
6. Southeastern Promotions v. Conrad: Municipal auditorium rented itself out to various
productions. Musical Hair wanted to perform. City wanted theater used for family programs
only. City can decide that it will limit itself in the type of performances it allows.
a. But what does the city have to do to avoid a 1st Amendment problem? Define family
type entertainment and have a definite procedure that people can apply for license and
have a procedure for review of denial of the license.
7. Bantam Books. v. Sullivan: Activities of a govt. commission included identifying objectionable
books (some admittedly not obscene), notifying the distributor in writing, informing the
distributor of Commissions duty to recommend obscenity prosecutions to Attorney General, and
distributing Commissions list of objectionable books to local police departments. Commission
thanked distributors in advance for cooperation and a cop usually visited the distributor to learn
what action had been taken. Held: unconstitutional. Practices were a system of prior
administrative restraints, rather than mere legal advice.

26

8. Pittsburgh Press. v. Pittsburgh Commn on Human Relations: An order forbid Pittsburgh Press to
carry sex-designated help wanted ads, except for exempt jobs. Held: upheld order. It did not
endanger arguably protected speech. Order is clear and sweeps no more broadly than necessary.
C. Licensing Professionals: A Dichotomy Between Speech and Press
1. Lowe v. SEC: Investment Advisors Act provided for injunctions and criminal penalties against
anyone using the mail in conjunction with the advisory business who is not registered with the
SEC. SEC sought an injunction against Lowe alleging that Lowes registration with the SEC had
been properly revoked b/c of various fraudulent activities, and that by publishing investment
newsletters, Lowe was using the mails as an investment advisor. SEC contended Lowes prior
criminal conduct showed his total lack of fitness to remain in an occupation with numerous
opportunities for dishonesty and self-dealing. Held: Court denied that Lowes publication of
financial newsletters made him an investment advisor under the act. The doctrine against prior
restraints supports a broad reading of the exclusion that encompasses any newspaper provided
two conditions are met: (1) the publication must be bona fide, and (2) it must be of regular and
general circulation.
2. Riley v. National Federation of the Blind: NC required professional fundraisers to await a
determination regarding their license application before engaging in solicitation, while volunteer
fundraisers were allowed to solicit immediately upon submitting an application. Held: Court
invalidated scheme - speakers rights not lost merely b/c he is compensated; a speaker is no less a
speaker b/c he or she is paid to speak.
D. Prior Restraints and National Security
1. NY Times v. U.S. [The Pentagon Papers Case]: During the Vietnam War, the NY Times and the
Wash. Post published portions of a study which the govt. had classified as "Top Secret." The
classified study was entitled "History of U.S. Decision Making Process on Viet Nam Policy," and
was popularly known as the "Pentagon Papers." The govt., maintaining that "National security"
interests were threatened by further publication, sought prior restraints against the Times and the
Post. Held: Any system of prior restraints of expression comes to the court bearing a heavy
presumption against its constitutional validity. The govt. thus carries a heavy burden of showing
justification for the enforcement of such a restraint. No restraining order or injunction will issue.
There is no exception for national security for a restraint on speech.
2. U.S. v. Progressive, Inc: Progressive planned to publish an article. The H-Bomb Secret How
We Got It, Why Were Telling It, maintained that the article would contribute to informed
opinion about nuclear weapons and demonstrate the inadequacies of a system of secrecy and
classification. The govt. conceded that some of the information in the article was in the public
domain, but argued that national security permitted it to censor such information if that info
acquired the character of presenting immediate, direct and irreparable harm to the interest of the
U.S. Court issued a temporary restraining order enjoining defendants from publishing the data.
Held: court entered preliminary injunction, finding that govt. had proven all necessary
prerequisites for issuance of a preliminary injunction b/c of existence of the likelihood of direct,
immediate, and irreparable injury to the nation. Since facts and circumstances presented fell
within narrow recognized area of national security in which a prior restraint on publication was
appropriate, issuance of a preliminary injunction did not violate s 1 st Amendment rights.
a. Progressive was going to publish an article on how to make an H bomb. The court said,
this material is available in the public library, so you cant restrain it in this publication!
3. Snepp v. U.S.: Snepp published a book called Decent Interval about certain CIA activities in
South Vietnam based on his experiences as an agency employee without seeking prepublication
review. The govt. conceded that the book disclosed no confidential information. Held: Snepps
failure to submit the book was a breach of trust and the govt. was entitled to a constructive trust
on the proceeds of the book. The govt. had a compelling interest in protecting both the secrecy of
information important to our national security and the appearance of confidentiality so essential
to the effective operation of our foreign intelligence service.
a. The CIA has to show that there is an immediate danger.

27

b. Govt. can sustain its heavy burden in a case where a CIA agent is about to have her cover
blown by a publication. This puts lives in danger so the burden for prior restraint might
be met in this case. But this is about as far of an extreme as it has to go.
V.

Justice and Newsgathering

A. Publicity About Trials
1. Sheppard v. Maxwell: adverse publicity and conduct of officials involved with trial prejudiced the
as to amount to a denial of DP. Jurors should have been instructed not to read about or discuss
the case out of court, the courtroom and the courthouse should have been regulated so as to
maintain order and prevent a carnival atmosphere, and the media should have been instructed as
to proper conduct and to avoid prejudicial reporting. However, the Court reiterated its extreme
reluctance to place any direct limitations on the freedom traditionally exercised by the news
media b/c what transpires in the courtroom is public property.
2. A gag order barring lawyers from public discussion of cases must be precisely tailored and
justified. They can be prevented from making statements that pose a clear and present danger to
the administration of justice.
3. Gentile v. State Bar: state can prohibit lawyers from making public statements to the press that
the lawyer knows or should know will have a substantial likelihood of materially prejudicing an
adjudicative proceedings.
a. Test is same for rules regulating lawyer conduct and rules regulating judicial conduct.
The only thing the state can prohibit on the part of lawyers are public statements that
have substantial likelihood of materially prejudicing adjudicative proceeding or
statements made with a disregard for truth or falsehood.
B. Newsgathering
1. Protection of Confidential Sources
a. Brandsurg v. Hayes: there is nothing special about the press. The press does not have
greater 1st Amendment rights than anyone else. They cannot avoid complying with a
grand jury subpoena. No right to access to information not generally available to the
public on the ground that the press is a newspaper.
b. University of Penn. v. EEOC: Gender discrimination claim. There is nothing special
about being an academic. Woman faculty member is denied tenure. She claims she was
discriminated against on the basis of gender and wants to question other board members
about hiring. Court said they have no academic freedom to prevent that. If they make a
decision to deny tenure, the person denied tenure can claim that this a violation of her
anti-discrimination laws.
c. Food Lion v. Capital Cities/ABC: One of the ways a newspaper can do an expose about
abuses in nursing homes is to hire someone to go in as a nurses aid and then report on
what she sees there. Is activity protected by the 1 st Amendment? ABC is violating law.
Cannot justify violation of law on ground that youre trying to get a story. After
employees got facts, ABC ran news story, which Food Lion claimed ruined its reputation.
i.
Food Lion cant claim damages for injury to reputation b/c information is true.
ii.
Media can publish information that is true.
iii.
Based on chilling effect doctrine, it is protective of freedom of speech. Media
cannot be sanctioned for publishing a story that is true, regardless of how
revealing, how hurtful. Can have no statement of fact that is knowingly false.
iv.
ABC can be sanctioned for illegal conduct in obtaining story, but when it
publishes story it cannot be held liable even though it obtained story illegally.
d. Overarching theme:
i.
The media enjoys no special protection; it cannot claim exemption from other
laws on the ground that it is engaged in the business of newsgathering.
ii.
The media can be held liable for doing certain things. It cannot be held liable
for publishing a story with truthful information for public concern, no matter
how the story came to the attention of the newspaper.
2. Access to Trials
28

a. There is no general right to access to govt. controlled information.

b. Richmond Newspapers v. Virginia: Absent an overriding interest articulated in findings,
the trial of a criminal case must be open to the public unless there is an overriding interest
articulated in findings (if required to protect defendant's superior right to a fair trial.) The
right of the public/press to attend criminal trials is implicit in the guarantees of the 1 st
Amendment and cannot be disregarded.
i.
There are times when a court can be closed for specific testimony. Govt. would
have to show a substantial interest for closing the trial.
ii.
A courtroom is a public place and the presence of the public and the media is
thought to enhance integrity and quality of what takes place.
iii.
When you want trials to be open, you want to put the trial judge in a bind so he
cannot exercise his discretion for public interest in closing the portion of the
trial. Judge must state why he is doing so - can be reviewed by appellate
courts. Judge must consider alternatives to closing court (like in camera).
There cannot just be an undifferentiated fear for having the courtroom open.
The court is invalidating the blanket rules according to court rules.
iv.
Watch for complete closure or partial closure of courtroom on exam!
c. Summary:
i.
Importance of justification when the govt. imposes any restrictions to
expression or access.
ii.
Heightened scrutiny
VI.

Government Property and the Public Forum

A. Generally
1. Govt. is regulating expression that seeks access to or takes place on govt. or public property. One
could argue that just as a private landowner can control who can use the landowners property, so
can the govt. This argument has never been taken seriously. However, the govt. has more power
to regulate this access, but not actually prohibiting the use. In most of these cases, the govt. is not
prohibiting someone from using public property, rather it is regulating the persons access and
you use the term reasonable time, place, and manner.
2. STRUCTURE:
a. Public Forum:
i.
Traditional Public Forums: a park or street
ii.
Designated Public Forum: can be complete or limited
I. Reasonable time place and manner doctrine determines the right of
access to a public forum. It doesnt matter if the forum is traditional or a
designated public forum, however, if it is a limited public forum ONLY
those for whom it has been designated are entitled to access.
II. Govt. can undesignated area that has been designated public forum.
A. Example: A university campus will typically be used for a
public forum for the univ. community. Fences at all points on
campus and only those with i.d. can get in. Can the university
keep those out that want to oppose this? Yes b/c the university
can create the forum to be limited to only its own members. (The
university could designate one hall as a complete public forum).
B. Example: Detroit Board of Ed. allows citizens to speak at the
meetings, but it is limited to residents of Detroit. Non residents
would have no right to come to the meeting to speak.
b. Non Public Forum: any other property that is capable of being used for expression. Any
reasonable restriction standard is applied to this forum. Most public property is not a
public forum.
c. Summary:

29

i.
ii.

iii.
iv.

Whenever the issue involves expression that takes place on or seeks access to
govt. or public property the public forum applies. This distinguishes b/w
property that is a public forum and those that are not a public forum.
If it is a public forum access cannot be prohibited, it can be regulated in
accordance with the reasonable time, place, and matter doctrine, which means
it must be content neutral. Caveat if it is a designated forum that will control
the access so need to determine if this is complete or limited designation.
Most are nonpublic and access is determined by a general reasonableness test.
A designated public forum is only designated if the govt. body so designates it.
The key is that once it has been designated it must be content neutral.

B. Foundation Cases
1. Mandatory Access
a. Schneider v. Irvington: ban on leafleting in the public streets. Leaflets at issue were
political. They are nuisances, and most people will just throw these on the ground.
Held: public interest in freedom of expression is more important than citys interest in
preventing litter and cost to clean up is the price that we pay for freedom of expression.
It may be that the govt. can in some places ban distribution of commercial handbills but a
complete ban would not be a reasonable time, place, and manner doctrine and would
violate the fourth element of Central Hudson.
b. Cox v. New Hampshire: Any licensing law is treated as a vary on the void on its face
doctrine. Like a permit law by requiring a license in general or in access to govt. property
it must be content neutral and must contain narrow standards of licensing. Why must the
standards be narrow, definite and objective? It would violate the principal of neutrality.
Any licensing law must be neutral to begin with. Then it must contain narrow,
objective, and definite standards controlling the discretion of the licensing official.
This is true whether it is a general license, a law for govt. property or if it is a public or
nonpublic forum.
c. Heffron v. International Soc. For Krishna Consciousness: Moonies wanted to go through
the crowd at the state theater and stop people and say that this is our organization and
cause and then solicit for a contribution.
i.
Can they be kept off the fair grounds? To an extent. There were booths
available for them to use this would be an adequate alternative.
ii.
Classic example of a reasonable time, place, and manner limitation.
iii.
Too disruptive to have people soliciting money on fair grounds. Govt. has
legitimate reason to want crowd control. They can require a booth for the
Moonies, even though they really only want to control the Moonies. This will
lead to controlling all similar expressions.
d. Ward v. Rock Against Racism: Even in a public forum, the govt. may impose reasonable
restrictions on the time, place, or manner of protected speech, provided the restrictions
are justified without reference to the content of the regulated speech, that they are
narrowly tailored to serve a significant govt. interest, and that they leave open ample
alternative channels for communication of the information.
2. Equal Access
a. Chicago Police Dept. v. Mosley: If ban applies to streets it would be a reasonable time,
place, and manner restriction. This case banned everything except labor disputes and
allowed teachers to strike. Once you make an exception then you bring in content
neutrality. Court does not distinguish b/w viewpoint and category neutrality. This is a
public forum and govt. cannot make any category distinctions on access to public forum.
C. New Forums: restriction in the nonpublic forum.
1. Whenever you have an issue of a restriction on expression that takes place on or seeks access to
govt. places, you bring up the public forum doctrine. For both traditionally and designated
forums you use reasonable time, place, and manner. If it is nonpublic then you use the typical
reasonableness standard.
30

2. Carey v. Brown: interschool mail system was allowing the union and others to use the system to
communicate. A dissident group that would like to become the collective bargaining
representative wanted to use the mail system. The result does not seem to be content neutral b/c
it is between bargaining representative and everyone else. This is another exception to the
category distinction group.
3. Category Distinction Exceptions:
a. Sexually oriented speech
b. Commercial speech
c. For govt. property that is a nonpublic forum the general reasonableness test allows
certain category distinctions that are relevant to the function of the particular
property.
4. Greer: Political candidates prohibited from campaigning on military bases. We dont want any
connection of the military and politics. In order to avoid this, Presidential candidates do not visit
these bases. This is a reasonable category distinction related to the nature of the property.
5. Cornelius: If having United Way Fund drive and exclude controversial groups from donation
amount. Exclusion is constitutional? The court said yes a way to lose here would be to include
the Boy Scouts. They have discretion in determining access to campaign b/c it is a nonpublic
forum and the category distinction is relevant to raising money to a wide variety of purposes.
6. There is never a viewpoint distinction allowed, however some category differences are
permissible. Category distinctions are, however, never permissible in a public forum, so
distinctions only apply to nonpublic forums.
7. International Society for Krishna Consciousness v. Lee: A ban on solicitation in airport terminals,
which are not public forums, is reasonable and does not violate the First Amendment. A
solicitation ban in airport terminals is reasonable and does not violate the First Amendment.
Airports are recent developments, with an even more recent history of use for religious and
speech activities, so they are not traditional areas of public speech. Bus and train stations might
be public forums, but airports have heightened security needs and are less compatible with certain
expressive activity. Airports are commercial enterprises dedicated to the facilitation of air travel
and do not have a primary purpose of "promoting the free exchange of ideas." As a speech
restriction in a nonpublic forum, the regulation only must be reasonable.
8. Lee v. International Society for Krishna Consciousness Inc: total ban on leafleting in airport
terminals violates the 1st Amendment. The airport was not a public forum. It is definitely not a
traditional one and they were not designated.
a. Can be a designated public forum formally or informally when (1) the govt. has allowed
activity, or (2) b/c of the nature of the property.
9. Burson v. Freeman: Ban on campaigning within 100 feet of a holding place. Category type
distinction; restriction was a reasonable one. There is no category distinction in public forum.
10. Cox: Prohibited picketing in from of the courthouse. Ban could be upheld as a reasonable time,
place, and manner regulation.
11. U.S v. Grace: Prohibited picketing in front of USSC building. This is not reasonable time, place,
and manner regulation. It avoids a overbreadth challenge.
D. Privacy and the Public Forum
1. Hill v. Colorado: involve restrictions on anti-abortion picketing and protest in public streets.
Held: protesters needed to stay 8 feet away from the entrance. Law was narrowly tailored. 1 st
amendment protects right not to listen, or avoid unwelcome speech.
I.

FREEDOM OF RELIGION THE ESTABLISHMENT CLAUSE

Introduction
A. Value of Religious Freedom: respect of religious beliefs (existence or nonexistence of a supreme being.)
B. The Historic Context:
1. The Framers protected freedom of religion by 1) Establishment Clause 2) and free exercise
clause. The clauses are complementary and interrelate.
2. The court finds the doctrines to be very differently.
3. Establishment clause is easier to sustain: violation of free exercise is predicated on coercion.
31

II.

C. Engel: The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing
of direct govt. compulsion and is violated by the enactment of laws which establish an official religion
whether those laws operate directly to coerce non-observing individuals or not. When the power,
prestige and financial support of govt. is placed behind a particular religious belief, the indirect coercive
pressure upon religious minorities to conform to the prevailing officially religion is plain.
D. Example of Free Exercise Claim:
1. Adherence to Native American church smoke pipes of peyote in religious ceremonies and this
was not permitted by the govt. This is a compelling interest of the govt. to stop substance abuse.
2. Military has a rule about head gear and orthodox Jew did not want to wear their head gear b/c it
was contrary to his religion. Is this compelling?
3. Both cases the court said that the free exercise clause does not require an exemption for laws of
general application. Actions against the govt. that discriminate against religious people would
probably violate the Establishment Clause as well.
E. Establishment Clause applies to states by the 14th Amendment DP clause: Establishment Clause
mandates separation of church and state and the Court has referred to the Establishment Clause as setting
up a wall. Can govt. and religion be separate? Not completely - the govt. provides police and fire
protection.
F. It is not separation of church and state b/c the govt. must maintain a course of complete official
neutrality toward religion. It cant aid religion but it does not have to be hostile toward religion. It
cannot discriminate against religion. In the area of govt. benefits there is a question of whether the
inclusion of the religious sector is permissible for neutrality or a violation of the Establishment Clause
due to the fact that religion benefits in a tangible way.
G. Law of the Establishment Clause Article: Once you look at structure of clause its possible to explain it.
H. Overriding Principal of Complete Official Neutrality: Lemon Test: Three Operating Principals (not an
overriding test, but setting forth three operative principles):
1. Law must have a secular purpose;
2. No advancement or inhibition of a religious (secular) effect; (why worry about intent to advance
or discriminate when all you have to show is a religious effect)
3. No govt. entanglement with religion
I. See Article [1351-59] Subsidiary Doctrines: Precedents in the different areas of the law. As a lawyer
you start with the precedents and the subsidiary doctrines and keep in mind the Lemon test.
Aid to Religion
A. Everson v. Board of Educ: NJ township reimbursed parents for the cost of sending their children on
regular buses operated by the public transportation system, to and from schools, including nonprofit
private and parochial schools. Held: court rejected municipal taxpayers contention that payment for
Catholic parochial school students violated the Establishment Clause.
1. State cannot prefer religion over non-religion. Must have complete official neutrality.
2. This gives specific benefit to the children but it is justified b/c it is neutral in relation to all
schools and the public purpose was satisfied. There is no effect of advancing religion. It was
designed to get children to and from schools.
B. Zelner: State can provide benefits to individuals and choose how they want them used.
C. Walz v. Tax Cmmn: upheld state tax exemption for real or personal property used exclusively for
religious, educational or charitable purposes. Legislative purpose of property tax exemption is neither
advancement nor inhibition of religion; it is neither sponsorship nor hostility.
1. Exemption for church property not unconstitutional. Tax break is given b/c these are non-profit
organizations that benefit the community.
2. The nondiscriminatory inclusion of religion religion can be included with sector if it benefits
community and is nonprofit. Unconstitutional to give them exemption and not others.
D. Texas Monthly v. Bullock: court held violative of the Establishment Clause a sales tax exemption for
books and periodicals that are published or distributed by a religious faith and that consist wholly of
writings promulgating the teaching of the faith. Violates the complete official neutrality principal.
E. Lemon v. Kurtzman: Invalidated state salary supplements to teachers of secular subjects in nonpublic
schools, articulated a 3-part test for judging Establishment Clause issues:
1. Lemon Test:
32

a.
b.

F.

G.
H.

I.

J.

The statute must have a secular legislative purpose;

Its principal or primary effect must be one that neither advances nor inhibits
religion;
c.
The statute must not foster an excessive govt. entanglement with religion.
2. Relate facts to all prongs of test, but if it fails one, test is unconstitutional.
3. State can provide remedial services to the parochial schools. This falls on the side of aid to the
children. In Grand Rapids Case court said that when aid is provided in parochial school itself it
violates doctrine of symbolic union of church and state. Part has been overruled saying that the
state can provide remedial services within the parochial schools.
4. All schools are having a hard time funding music and art. Cant send public school teachers to
parochial schools. Cant advance religious mission of parochial schools.
Mitchell v. Helms: As part of a school aid program the federal govt. distributes funds to state and local
govt. agencies which in turn lend educational materials and equipment to public and private schools based
on enrollment. Question: whether the program is a law respecting an establishment of religion since
many of the private school receiving such aid were religiously affiliated. Held: In determining whether
govt. aid has the effect of advancing religion, the court must consider the following criteria: (1) whether
the statute results in govt. indoctrination; (2) whether the statute defines its recipients by reference to
religion; and (3) whether the statute creates an excessive govt. entanglement.
1. $ to schools (including parochial) to buy computers. Material has to be secular and nonideological.
2. Can parochial students given computers use them for religious purposes? Court split 3 ways; we
have a plurality: 4-2-3. As long as benefit is neutral and it goes to children who attend parochial
schools at choice of their parents it doesnt matter if they use computer for a religious assignment.
3. Witters [1043] State set up program to pay college tuition for people with disability. Witters
wanted to do religious work. Is there a violation if state pays his college tuition? No - they are
not discriminating against religions. This gives benefit to individual; he can use it for whatever
purpose he wants.
4. Zobrest. Student transferred to parochial school and wanted to take his transcripter with him.
State is helping him get an education in parochial school where his parents have a constitutional
right to send him.
5. Muller v. Allen [1040 n.d]. IRS offered tax deduction for educational expenses. 96% of
deductions were taken by parents for tuition to parochial schools. What could parents of public
school children deduct? Supplies. This is okay as long as the program is neutral and all parents
can take the benefit; it doesnt matter that most is taken by parents of parochial students.
When the govt. gives a grant to religious schools to be used for the benefit of children the instructional
materials can only be used for secular purposes.
Tilton v. Richardson / Roemer v. Board of Pub. Works: Upheld direct govt. grants to church-related
colleges and universities as part of general programs for construction of buildings and other activities not
involving sectarian activities. Roemer noted what is crucial to a non-entangling aid program: the ability
of the State to identify and subsidize separate secular functions carried out at the school, without on-thesite inspections being necessary to prevent diversion of the funds to sectarian purposes. Tilton added:
there are generally significant differences between the religious aspects of church-related institutions of
higher learning and parochial elementary and secondary schools.
Bowen v. Kendrick: the Adolescent Family Life Act, which grants funds to a variety of public and private
agencies (including religious organizations) to provide counseling for prevention of adolescent sexual
relations and care for pregnant adolescents and adolescent parents did not, on its face, violate the
Establishment Clause.
Zelman v. Simmons-Harris: program provides tuition aid for students to attend a participating public or
private school of their parents choosing. Program provides tutorial aid for students who choose to remain
enrolled in public schools. Held: program was one of true private choice and the Courts decisions have
drawn a consistent distinction between govt. programs that provide aid directly to religious schools, and
programs of true private choice, in which the govt. aid reaches religious schools only as a result of the
genuine and independent choices of private individuals.
33

III.

IV.

K. Lee v. Weisman: practice of public school officials inviting members of the clergy to offer invocation and
benediction prayers at graduation ceremonies violates EC.
L. Santa Fe Ind. School Dist. v. Doe. held invalid on its face the school districts policy authorizing a
student election (1) to determine whether to have a student deliver a brief invocation and/or message at
varsity football games to solemnize the event, to promote good sportsmanship and student safety, and to
establish the appropriate environment for the competition, and (2) to select a student volunteer who is to
decide what statement or invocation to deliver, consistent with the goals and purposes of this policy.
M. Newdow v. U.S. Congress: Congress addition of under God to Pledge of Allegiance by, and the daily
recitation in the classroom of the Pledge with the added words by plaintiffs daughters public school
teacher, violated the Establishment Clause.
N. Capitol Square Review & Advisory Board v. Pinette: petitioners permitting the KKK to place a Latin
cross in a 10-acre, state-owned plaza surrounding the Statehouse in Columbus, when it had also permitted
such other unattended displays, such as a state-sponsored lighted tree during Christmas, a privatelysponsored menorah during Hanukkah did not violate the Establishment Clause.
Financial aid to religion:
A. Program has to be neutral. Tax exemption for education exemptions at private schools would be
unconstitutional. Mueller tax deduction for education expenses is permissible even though the bulk is
used by parents who send children to parochial school.
B. Private Choice: dividing point in Zelner case.
C. Secular Purpose: If money goes to the school it has to take the form of aid to the child. Aid to the
school would be unconstitutional. When school is given money to support a program that will aid the
children there must be safeguards to ensure that it is used only for secular purposes. When it comes to
aid to the actual child or parent it must have secular purpose and criteria must be neutral and the
program must be of true private choice.
D. Universities: Because universities are religiously based, govt. funds must be targeted for secular
purposes. A general grant of money would be unconstitutional b/c it could be used for religious purposes.
E. Tilton v. Richardson / Roemer v. Board of Pub. Works: Upheld direct govt. grants to church-related
colleges/universities as part of general programs for construction of buildings and other activities not
involving sectarian activities. Crucial to a non-entangling aid program is the ability of the State to
identify and subsidize separate secular functions carried out at the school, without on-the-site inspections
being necessary to prevent diversion of the funds to sectarian purposes. There are generally significant
differences between religious aspects of church-related institutions of higher learning and parochial
elementary and secondary schools.
F. Bowen v. Kendrick: Adolescent Family Life Act, which grants funds to a variety of public and private
agencies (including religious organizations) to provide counseling for prevention of adolescent sexual
relations and care for pregnant adolescents and adolescent parents, did not, on its face, violate the
Establishment Clause.
1. Does this mean that a Catholic organization can do the counseling and can say no sex to
marriage? It seems that they could if the money is going to the institutions equally. It is harder to
monitor. Isnt the govt. then aiding religion by promoting religious doctrines? The govt. can give
funds to a religiously organization to carry out a secular purpose but the organization must do it in
a secular way. There cant be any monitoring that involves entanglement. You would require
them to say they are not giving religious counseling.
2. Classic example of such funds - hospitals b/c they perform secular purpose.
G. State can provide benefits to individuals in a way that they can choose how they want to use it.
H. Rosenberger: was discussed earlier in 1st Amendment section. If recognize student organizations, cant
discriminate religious ones. Refused to pay for the printing bill for a Christian organization saying it
would have been given to benefit a religion.
1. If grant of funds to religious org. violates Est. Cl., govt. is prohibited from doing so.
2. If funds were for benefit of religious organization, and did not violate the Establishment Clause,
then under the neutrally principle you must give to both organizations.
3. OConnor: university isnt giving the money, they are paying the printing costs for publication.
Religion and Public Schools
A. Is there religion in public schools?
34

B.

C.

D.

E.
F.
G.

H.

I.

1. No. Establishment Clause prohibits state from promoting religion in public schools. There is no
place for God in the public schools.
2. What about parents who want children to have a religious education? They have a right to send
them to a parochial school. The Court could have held that the Establishment Clause does permit
an apportionment to religious schools, however it did not allow it.
3. Children can pray silently in public schools.
4. What about Muslim children who attend public schools? They are allowed to go and pray b/c it is
not pushing religion on others it just allows them to practice religion. Specifically tailored to
allow a person free choice of religion.
5. Constitution prohibits state from promoting religion in public schools as a matter of policy.
6. As the lawyer for Farmington schools, they have a number of Jewish children and parents
pressure you to close the school for Jewish holidays. This is okay. School argues that they are
going to have so many absences that they have to close the schools. For Easter Friday, you could
close the school down as the beginning of spring break.
Wallace v. Jaffree: statutes enacted for the purpose of endorsing or disapproving religion violate the
Establishment Clause of the 1st Amendment. Individual freedom of conscience protected by the 1 st
Amendment embraces the right to select any religious faith or none at all. A statute which does not have a
secular legislative purpose, or which is entirely motivated by a purpose to advance religion, violates the
"purpose" test of Lemon v. Kurtzman and the Establishment Clause.
1. The moment of silence law is neutral. However, this law was unconstitutional b/c the purpose
was for silent prayer. This is a rare case where the case violates the first Lemon element. The
purpose was to encourage children to pray.
McCollum v. Board of Educ: public school released time program violated the Establishment Clause.
Privately employed religious teachers held weekly classes in their respective religions while nonattending students pursued secular studies in other parts of the building. It helps to provide pupils for
their religious classes through use of the states compulsory public school machinery.
Zorach v. Clauson: Upheld a released time program in which religious classes were held in church
buildings: This program involves neither religious instruction in public school classrooms nor the
expenditure of public funds. All costs, including the application blanks, are paid by the religious
organizations.
1. Court would not reach this result today b/c it favors religion over other activity.
Stone v. Graham: statute required the posting of the Ten Commandments, purchased with private
contributions, on the wall of each public classroom in the State. No secular legislative purpose.
Epperson v. Arkansas: anti-evolution statute, forbidding teachers in public schools to teach the theory or
doctrine that mankind ascended or descended from a lower order of animals, violated Establishment
Clause. Purpose for law was grounded in religion b/c evolution was considered anti-religious.
Edwards v. Aguillard: statute forbade the teaching of the theory of evolution in public schools unless
accompanied by instruction in creation science. Held: no clear secular purpose. Law required school to
teach creation science if it taught evolution. Court found it unconstitutional b/c creation science was not
science at all but it was religion.
Board of Ed. v. Mergens: Interpreted Equal Access Act to apply to public secondary schools that (a)
receive federal financial assistance, and (b) give official recognition to non-curriculum related student
groups in such ways as allowing them to meet on school premises during non-instructional time.
1. No violation of EC b/c it was after school and no one was forced to join this club. School is not
supporting religious purpose. School is being neutral b/c it allows other after-school clubs.
2. Equal access law here embodies the constitutional requirements of equal access for religious
student organizations during and after school.
3. What about Christmas programs in public schools? Christmas is a secular holiday for a
constitutional purpose b/c it is nationally accepted. They may also include religious based carols
or songs, but it must be neutral.
Good News Club v. Milford Central School: no EC violation for a public schools permitting a Christian
organization to use school rooms for weekly after school meetings, which involved religious instruction
and worship, when the school allowed such use by other groups for the moral and character development
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V.

of children. Clubs meetings were held after school hours, not sponsored by the school, and open to any
student who obtained parental consent.
Official Acknowledgment of Religion
A. There is always pressure for the toleration of a little bit of religion.
B. Allegheny County v. ACLU: Govt.'s use of religious symbols or displays violates the Establishment
Clause if, given the context of their use, it is sufficiently likely that the public will understand them as
endorsing or disapproving of its individual religious choices. a perceived endorsement of religion by
govt. is invalid b/c it sends a message to non-adherents that they are outsiders, not full members of the
political community.
C. Lynch v. Donnelly: Had nativity scene. The Establishment Clause is not violated by a traditional religious
practice that acknowledges the religious nature of the American people. Argument: primary purpose and
effect of these actions was not to promote religion. OConnor provides the crucial vote to uphold the
display.
D. March v. Chambers: Govt. cannot promote prayer in public schools. An acknowledgment of prayer
would advance religion. Legislative prayer was upheld and meetings can be opened with prayer. (This
does not extend to the board of education.)
E. Test: Whether display sends message of endorsement of religion, this is for lower courts to decide.
F. The govt. cannot have a religious display if it endorses a religion.

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