b.
c.
d.
e.
f.
iii.
viii.
ix.
x.
xi.
the court-appointed expert, which rezoned school districts in ways that distributed
black students to previously white schools, requiring extensive bussing
2. Issue: Whether the dstrict court judge exercised proper constitutional power in
imposing an equity-based remedy requiring the rezoning of school districts and
extensive busing (yes)
3. Green: School authorities are charged with the affirmative duty to take whatever
steps might be necessary to convert to a unitary system in which racial
discrimination would be eliminated root and branch
4. Rule: If school authorities fail in their affirmative obligations under these
holdings (Brown II, Green) judicial authority may be invoked. Once a right and a
violation have been shown, the scope of a district courts equitable powers to
remedy past wrongs is broad, for breadth and flexibility are inherent in equitable
remedies; In a system with a history of segregation the need for remedial criteria
of sufficient specificity to assure a school authoritys compliance with its
constitutional duty warrants a presumption against schools that are substantially
disproportionate in their racial composition
5. POC: District court judges have substantial discretion to fashion a remedy
xii. Keys v. School District No. 1 (p. 110)
1. POC: De facto racial segregation (segregation resulting from purely private
decisionmaking) in public schools does not violate the Equal Protection Clause;
only de jure racial segregation (that attributable to the state) is actionable
xiii. Milliken v. Bradley (p. 111)
1. Facts: The federal district judge found that the Detroit Board of Education had
created and perpetuated a system of racially segregated school districts, and as an
entity created by Michigan, the Boards unconstitutional acts were attributable to
the state. The court imposed a remedy dependent on heavy busing
2. Issue: Whether the precedent of Keyes, Swann, and Green (which all involved a
single school district) apply to segregation amongst multiple school districts (no)
3. Rule: Before the boundaries of separate and autonomous school districts may be
set aside by consolidating the separate units for remedial purposes or by imposing
a cross-district remedy, it must first be shown that there has been a constitutional
violation within one district that produced a significant segregative effect in
another district. Specifically, it must be shown that racially discriminatory acts of
the state or local school districts, or of a single school district, have been a
substantial cause of inter-district segregation; Interdistrict remedy vacated
xiv. Freeman v. Pitts (p. 113)
1. Facts: Lower court relinquished jurisdiction over student assignment of school
system finding that continued segregation in the schools was caused by changing
residential patterns and not by anything the local government had done
2. Rule: A federal court in a school desegregation case has the discretion to order an
incremental or partial withdrawal of its supervision and control; That there is
racial imbalance in schools is not tantamount to a showing that the school district
is in noncompliance with its duties under the law. Racial balance is to be pursued
where it has been caused by a constitutional violation. Once the racial imbalance
due to the de jure violation has been remedied, the school district is under no duty
to remedy imbalance that is caused by demographic factors
a. Facts: A biracial couple were married and prosecuted for violating VAs
state antimiscegenation law. The Lovings pleaded guilty and the VA trial
judge suspended their one-year jail sentence on the condition that they
leave VA and not return together for 25 years. The State argued that
because its miscegenation statute punishes equally both white and African
American participants in an interracial marriage, the statute, despite its
reliance on racial classifications do not constitute an invidious
discrimination based on race. The courts agreed, later denied Lovings
motion to vacate the conviction and sentence on the ground that the
antimiscegenation law was unconstitutional.
b. Issue: Whether the VA antimiscegenation statute was constitutional under
the Equal Protection Clause of the 14th Amendment (no)
c. Rule: The Equal Protection Clause demands that racial classifications,
especially in criminal statutes, be subjected to the most rigid scrutiny, and,
if they are ever to be upheld, they must be shown to be necessary to the
accomplishment of some permissible state objective, independent of the
racial discrimination which it was the object of the 14 th Amendment to
eliminate
d. Holding: There is no legitimate overriding purpose independent of
invidious racial discrimination which justifies this classification. Reversed
e. Note:
i. The state faced at least three hurdles in defending the laws
involved in Loving:
1. If the statutes embodied racial discrimination, Brown
would subject them to close judicial examination under the
Equal Protection Clause
2. Even if the statutes were not racially discriminatory, the
state acknowledged that they violated equal protection if no
rational basis could be discerned for the distinctions among
persons found in them
3. By burdening the liberty to marry, the statutes potentially
violated the Due Process Clause
5. Strict Scrutiny
a. Statutes that on their face take race into account are subject to strict
scrutiny, even if they equally disadvantage whites and blacks, at least so
long as the use of race can be traced to hostility toward a racial minority or
the view that the minority is inferior
b. 2002 placing new inmates in cells with persons of same race during
initial evaluation period is subject to strict scrutiny
c. 1968 striking down state statutes requiring ongoing racial segregation or
prisons and jails
v. Facially Neutral Classifications
1. Statutes that on their face are neutral on the basis of race or national origin
a. De Facto Discrimination
b. Proven by demonstrating:
i. Discriminatory administration of a law;
ii. Discriminatory impact/effect; or
2.
3.
4.
5.
6.
Discriminatory Adminstration
Title VII
a. Facts: A group of white landowners filed suit alleging that the Shelleys
purchase of property was void due to a 1911 racially restrictive covenant
restricting the occupancy of a block of property to white persons
b. Issue: Whether judicial enforcement of a racially restrictive private
covenant constitutes state action violating the EPC (yes)
c. Rule: Judicial action is not immunized from the operation of the
Fourteenth Amendment simply because it is taken pursuant to the states
common-law policy. Nor is the Amendment ineffective simply because
the particular pattern of discrimination, which the State has enforced, was
defined initially by the terms of a private agreement
d. Holding: In a unanimous vote in favor of Shelleys, the Court
acknowledged that the restrictive covenant was not a violation of the EPC
by itself, but the judicial enforcement of it constituted state action in
violation of the US Constitution. The opinion only declared that it was
unconstitutional for the court or other state actors to enforce private,
racially restrictive covenants. Shelley helped home-sellers who wanted to
break racially restrictive covenants
e. The Constitution confers upon no individual the right to demand action by
the State which results in the denial of equal protection of the laws to other
individuals. It is beyond question that the power of the State to create and
enforce property interests must be exercised within the boundaries defined
by the Fourteenth Amendment
f. POC: The impetus for the forbidden discrimination need not originate
with the State if it is state action that enforces privately originated
discrimination
g. Examples:
i. Landowner orders someone off her property for racist reasons
1. Police arrest? No state action
2. Court injunction ordering the person to leave? No state
action
3. **Insert a colorblind judge. She could convict the
trespasser because her race is legally irrelevant
h. Note:
i. Fair Housing Act of 1968, an actual response to Shelley, making
restrictive covenants illegal
his race. The restaurant leased its space from the City and it was attached
to Wilmington Parking Authority, a city owned parking garage
b. Rule: There is significant state involvement to permit an action under the
Fourteenth Amendment when a state leases public property to a private
actor who then discriminates against nonwhites
c. POC: Court found that the restaurant was so enabled by the state that their
actions constituted state action [narrowed in Moose Lodge]
3. Moose Lodge v. Irvis (p. 241)
a. Facts: A member of defendant club invited Plaintiff, an African American,
to dine there. The club refused to serve him, consistent with rules of its
national organization that limited membership to white males and allowed
members to have only white guests. The defendant club is private, housed
in a building owned by it, and not publically funded. Plaintiff conceded
the right lof private clubs to choose members upon a discriminatory basis,
but asserted that the licensing of the club to serve liquor by the PA Liquor
Control Board amounts to such state involvement with the clubs activities
as to make its discriminatory practices forbidden by the Equal Protection
Clause of the Fourteenth Amendment
b. Issue: Whether a state liquor boards issuance of a liquor license to a
private club located on private property constitutes significant state
involvement, thus, permitting an action under the Fourteenth Amendment
(no)
c. Rule: The granting of a liquor license to a private club that discriminates
against non-whites does not significantly involve the state as to constitute
a state action
d. POC: Where the impetus for the discrimination is private, the State must
have significantly involved itself with invidious discriminations in order
for the discriminatory action to fall within the ambit of the constitutional
prohibition (Reitman v. Mulkey); State licensing and regulation are not
enough to render the private entity a state actor; Private entities are
entitled to receive the general benefits of general citizens without
subjecting themselves to the Constitution
4. Edmonson v. Leesville Concrete
a. Facts: Plaintiff appealed jury decision on the grounds that Defendant had
used race-based peremptory challenges of jurors
b. Issue: Whether a private litigant may use peremptory challenges to
exclude jurors on account of their race (no)
c. Rule: Peremptory challenges cannot be used to exclude prospective jurors
based on reasons of race
v. State Action and Congressional Authority to Enforce/Promote Civil Rights
1. Jones v. Alfred H. Mayer (p. 883)
a. Issue: Whether Congress has power under the Constitution to do what 42
USC 1982 purports to do: to prohibit all racial discrimination, private
and public, in the sale and rental of property (yes)
2.
3.
4.
5.
contrary exertions of state power, and the Act is an appropriate means for
carrying out Congress constitutional responsibilities under the 15 th.
Congress also has the power to regulate practices that it sees are
discriminatory, even if no evidence of past discrimination is in the present
record
d. Remedial Theory:
i. Congress may paint with a broad brush and adopt a prophylactic
rule
ii. Rome seems to hold that Congress should be allowed to outlaw
changes in electoral practices that have discriminatory effects
under its power to enforce the Fifteenth Amendment
g. Affirmative Action
i. Beginning in the 1970s the Court faced a series of cases in which affirmative action the
overt use of racial criteria to benefit racial minorities was challenged
ii. Affirmative Action government or state related plans that are either in hiring, education,
pension, construction that require a certain percentage/approach to promoting gains by
African Americans, women, or other minorities. Affirmative action also exists in private
institutions but is not affected by EPC unless they receive state funds
iii. Key Question What is the appropriate level of scrutiny of facially racial affirmative
action statutes and programs?
iv. Regents of the University of California v. Bakke (p. 253)
a. Facts: A white medical student was denied admission to the defendant
school due to the implementation of affirmative action. Strict scrutiny was
used to invalidate the medical schools admission policy. The University
put forward 4 possible rationales for using affirmative action: 1)
remedying effects of past societal discrimination (no); 2) helping
underserved communities (no); 3) increasing the number of minority
physicians (no); 4) attainment of a diverse student body (yes)
2. Issue: Whether strict scrutiny should be the level of judicial scrutiny applied to
the special admissions program (yes)
3. Rule: When a classification denies an individual opportunities or benefits enjoyed
by others solely because of his race or ethnic background it must be regarded as
suspect. When a states distribution of benefits or imposition of burdens hinges
on the persons color of skin or ancestry, that individual is entitled to a
demonstration that the challenged classification is necessary to promote a
substantial state interest. Merely filling a racial quota is not a substantial state
interest and thus, is per se unconstitutional
4. Holding: Strict scrutiny will be applied to higher education admissions policy, in
this case, rendering the policy invalid as it was based, in part, on a quota system
5. Three different sets of opinions
a. Powell stressed the universal language of the EPC and concluded that it
protects all individuals equally. Strict scrutiny should apply regardless of
whether whites are a discrete and insular minority
b. The Brennan four said that strict scrutiny was inappropriate for benign
racial classifications, which they defined as those that do not stigmatize
those disadvantaged by the classification opting for intermediate
scrutiny
6. Note:
a. Private institutions not affected by Bakke unless they are recipients of
Title VI funding [The Bakke ruling caused some schools, like Harvard, to
refuse Title VI funding as they want to support affirmative action]
v. Fullilove v. Klutznick (p. 266)
1. Facts: Petitioner challenges a federal statute providing federal funds to state and
local government building projects that where at least 10% of the money was
spent procuring goods or services from minority business enterprises
2. POC: Congress can constitutionally use its spending power to remedy past
discrimination. The statute survives Bakke because it serves the compelling
government interest in eradicating the continuing effects of past discrimination
identified by Congress
3. Note:
a. Overturned by Adarand? Its unclear
vi. Wygant v. Jackson Board of Education (p. 267)
1. POC: The Court struck down a collective bargaining agreement between
defendant public school board and a teachers union that provided that layoffs be
made on a seniority basis except that at no time will there be a greater percentage
of minority personnel laid off than the current percentage of minority personnel
employed at the time of the layoff; The Court dismissed the teachers claims that
holding the racial preferences was permissible as an attempt to remedy societal
discrimination by providing role models for minority school children
a. Add to the list of the Bakke 4
vii. City of Richmond v. Croson (p. 268)
1. Facts: Defendant City adopted the minority Business Utilization Plan which
required govt supported construction contractors to set aside 30% of its
subcontracts to Minority Business Enterprises. The plan was remedial in nature
and enacted for the purpose of promoting wider participation by minority business
enterprises in the construction of public projects. Plaintiff contests that the plan is
unconstitutional because there had been no specific finding that its purpose was
supported by past discriminatory practices in the construction industry in
Richmond
2. Issue: Whether a state may enact an affirmative action plan without support that
the race-based measures remedy the effects of past discrimination (no)
3. Rule: Affirmative action programs are constitutional only after a showing that the
programs aim to eliminate effects of past discrimination
4. Analysis: If the city could show that it had become a passive participant in a
system of racial exclusion practiced by elements of the local construction
industry, the plan would have survived scrutiny
5. POC: All affirmative action program based on race must be supported by a
compelling government interest and withstand strict-scrutiny; without a showing
that the race-based initiative was created to remedy past racial discrimination and
that it supports a compelling government interest, the initiative is unconstitutional
Adarand
State
Federal
Fullilove
Crosson
State
Metro Brdcst
Michigan
Federal
State
Wygant
State
II.
1. POC: Court applies rational basis but adds some bite; Animus towards a group
ii.
iii.
iv.
v.
thats unfavored is not a legitimate purpose for the rational basis test
Reed v. Reed (p. 357)
1. POC: Idaho statutes provided a tie-breaker preference for males over females
of equal degrees of relationship to be appointed administer of an estate.
Unanimous Court struck down the statute under rational basis standard relying on
Royster Guano formulation under which the classification must be reasonable,
not arbitrary, and must rest upon some ground of difference having a fair and
substantial relation to the object of the legislation, so that all persons similarly
circumstanced shall be treated alike
2. Notes:
a. First time the Court struck down gender discrimination in a federal
regulation
b. Court applied rational basis review (with bite)
Frontiero v. Richardson (p. 357)
1. Facts: Pursuant to the USC, a serviceman could claim his wife as a dependent
without regard to whether she was in fact dependent upon him for any part of her
support. A servicewoman could not claim her husband as a dependent under
these programs unless he was in fact dependent upon her for over one-half of his
support.
2. Issue: Whether classifications based upon sex, like classifications based upon
race, alienage, and national origin, are inherently suspect and must therefore be
subjected to close judicial scrutiny (yes)
3. Rule: Classifications based upon sex are inherently suspect and must therefore be
subjected to strict scrutiny [Craig v. Boren intermediate scrutiny still the law]
4. Notes:
a. Is immutability a necessary or sufficient condition to trigger strict
scrutiny?
b. No majority opinion on what level of scrutiny should be used in gender
discrimination
Schlesinger v. Ballard (p. 498)
1. POC: A male Navy officer challenged a statute providing that male officers had a
shorter period in which to attain promotion or be discharged than female officers.
Upholding the statute, the Court concluded that the sex classification was not
based on archaic or overbroad generalizations like those in Frontiero, but rather
reflected the real differences between male and female Navy officers in terms of
promotions; The Court was willing to allow a sex-based remedial law which
arguably helped women overcome structural disadvantages and pursue nonstereotypical careers
Craig v. Boren (p. 365)
1. Facts: An Oklahoma statute maintained different drinking ages for men and
women based upon the justification that women got into less accidents/trouble
when associating with alcohol
2. Rule:
Gender-based classifications must satisfy intermediate scrutiny
requirements to pass constitutional muster
3. Notes: The Oklahoma statute would have passed the rational basis test as there
was an empirical connection between a legitimate state goal (safety) and the
classification chosen by the state (young men statistically threatened the goal
more than young women)
iii.
iv.
v.
combat
Michael M. v. Superior Court (p. 382)
1. Facts: A California statute includes as unlawful sexual intercourse an act of
sexual intercourse accomplished with a female not the wife of the perpetrator
where the female is under the age of 18. Petitioner was 17, the female [who was
not charged] was 16
2. Issue: Whether the gender disparity in the statutory rape laws is in violation of the
Equal Protection Clause (no)
3. Rule: A state may provide for punishment only for males to equalize deterrents to
teenage pregnancy
4. Note: As of June 2008, all states except Idaho follow a gender-neutral policy for
statutory rape
Parham v. Hughes (p. 384)
1. Facts: A Georgia law allowed the mother but not the father of a child born outside
of marriage to bring suit for the childs wrongful death (despite the fact that the
father acknowledged his paternity and had established a relationship with the
child)
2. Rule: Where gender-based classifications address circumstances where men and
women are not similarly situated, and the statutory classification is realistically
based upon the differences in their situations, the EPC is satisfied
Rostker v. Goldberg (p. 385)
1. Facts: 3 of the Military Selective Service Act empowered the President to
require the registration of every male citizen. The MSSA was challenged on
equal protection grounds for its exclusion of women
2. Rule: Men and women, because of the combat restrictions on women, are simply
not similarly situated for purposes of a draft or registration for a draft. Hence, the
decision of Congress and the President to exclude women from registration was a
sex-based classification closely related to Congress important purpose in
authorizing registration
Nguyen v. INS (p. 386)
1. Facts: The Supreme Court rejected a challenge to a federal statute that accorded
American citizenship automatically, upon birth, to a child born out of wedlock in
a foreign country to an American mother, but denied citizenship to such a child
whose only American parent was her father, unless the child were legally
legitimated or paternity were established in a court of law or by paternal oath
before the childs 18th birthday
2. POC: The Court found the sex discrimination justified by two governmental
interests; (1) The importance of assuring that a biological parent-child relationship
exists [mothers and fathers are not similarly situated with regard to the proof of
biological parenthood]; and (2) The determination to ensure that the child and the
citizen parent have some demonstrated opportunity or potential to develop not just
a relationship that is recognized by law, but one that consists of the real ties
between a child and parent [mothers and fathers are not similarly situated with
regard to relationship ties as mothers have at least the opportunity to develop real
ties].
vi. Notes:
1. The federal judiciary defers to Congress and the President with regard to matters
of military policy and war
a. The armed forces still must justify gender classifications under such a
deferential regime
b. The armed forces have traditionally maintained that men are better suited
for combat rules than women
c. Today, the main argument for the combat exclusion is that women in the
foxholes would be a sexual force disrupting morale and unit cohesion
d. Also, combat conditions tend to be rough and crude, with little privacy,
embarrassing to women as well as men
e. Notwithstanding these arguments, Congress repealed the statutory
exclusion and vested the Defense Department with discretion to assign
women to any military assignment
2. The judiciary also defers to Congress in matters of immigration and naturalization
e. Classifications That Have a Disparate Impact on Women
i. Geduldig v. Aiello (p. 393)
1. Facts: Californias disability insurance program paid benefits to persons
temporarily disabled from work, but excluded pregnancy-related disabilities from
coverage.
Petitioner maintained that the insurance program resulted in
individuals receiving a benefit or suffering a detriment because of a physical
characteristic unique to their sex which constituted unconstitutional sex
discrimination
2. Issue: Whether exclusion of pregnancy-related conditions violates the EPC (no)
3. Rule: The pregnancy exclusion was rationally related to the insurance programs
self-supporting goals, benefits are covered by premiums and some lines have to
be drawn; Underinclusive legislation is appropriate under the Equal Protection
Clause, so long as the line drawn by the State is rationally supportable
ii. Personnel Administrator v. Feeney (p. 394)
1. Facts: A Massachusetts law provided that all veterans who qualified for state civil
service positions be given a preference over nonveterans. Plaintiff experienced a
pattern of getting high scores on civil service exams but losing jobs to lowerscoring male veterans; she challenged the veterans preference as a violation of
equal protection [over 98% of veterans in Massachusetts were male]
2. Rule: A gender neutral statute that adversely impacts one gender does not violate
the Equal Protection Clause if it does not have a discriminatory purpose and it
does not actually classify one gender
iii. Notes:
III.
Classifications Arguably
iii. Courts have been reluctant to view language-based discrimination as actionable, however,
the EEOC developed guidelines presuming that English-only workplace rules are national
origin discrimination. Employers can rebut the presumption if they can show a business
necessity for the English-only policy
c. Physical or Mental Disability
i. Rational basis review (with bite)
ii. The Rehabilitation Act of 1973 which formally banned discrimination by reason of
ones handicap was never completely implemented
iii. Activist organizations sought judicial recognition that disability is a suspect or quasisuspect classification like race or sex
iv. City of Cleburne v. Cleburne Living Center (p. 423)
1. Facts: Petitioner Citys zoning regulations required a special use permit to build
homes for (inter alia) the feeble minded. City denied such permit to the Living
Center for the establishment of a group home for the mentally retarded in the
community. Lower court determined the mentally retarded to be a group that is
quasi-suspect class and that the ordinance violated the Equal Protection Clause
2. Issue: Whether the mentally retarded are part of a quasi-suspect class subject
to a higher scrutiny under the Equal Protection Clause (no rational basis
scrutiny); Whether Petitioners special use permit requirement is constitutional
(no no rational relation to a legitimate governmental purpose)
3. Rule: Legislation that distinguishes between the mentally retarded and others is
subject to rational basis scrutiny, and as such, must be rationally related to a
legitimate governmental purpose; the State may not rely on a classification whose
relationship to an asserted goal is so attenuated as to render the distinction
arbitrary or irrational [Zobel v. Williams]; Some objectives, such as a bare desire
to harm a politically unpopular group, are not legitimate state interests [Moreno]
4. Holding: Ordinance invalid as applied to case
5. Notes: Rational basis with bite;
a. Heightened scrutiny in the race and sex discrimination cases starts with a
presumption of unconstitutionality, shifting the burden of justification to
the government limiting the kinds or arguments the government can make.
b. Ordinary rational basis review starts with a presumption of
constitutionality, which the challenger can rebut only by demonstrating
that there is no reasonable connection with any plausible state goal.
c. Cleburne-style rational basis review also starts with a presumption of
validity, but might be understood to allow the challenger to create a prima
facie case of invalidity by showing no rational it with the asserted purpose
or by demonstrating antipathy. Such a prima facie case would shift the
burden to the state to demonstrate a rational and neutral justification for its
discrimination
v. Heller v. Doe (p. 431)
1. Facts: Under KY law, mentally handicapped persons could be involuntarily
committed only upon a showing that they were dangerous to themselves or others.
The burden of proof for the mentally ill was beyond a reasonable doubt while
proof for the mentally retarded was only clear and convincing evidence, making
it easier for the state to institutionalize a retarded person
with the ideals of equal protection to term it invidious (yes); and (C) whether the
penalized group lacks effective political representation needed to protect itself from
social and state prejudice (yes)
ii. Notes: As of 2008, no federal appellate court has followed Judge Norris to find that
sexual orientation discrimination requires strict scrutiny; the vast majority of state
appellate courts have not embraced Norriss reasoning and stick with rational basis
review
f. Goodridge v. Department of Public Health (p. 449)
i. POC: Seven same sex couples sued the state to invalidate their exclusion from marriage.
Massachusetts appellate court struck down the discrimination under the Massachusetts
Constitution concluding that the Court need not reach the issue whether to apply
heightened scrutiny, for the discrimination had no rational basis
ii. Department Reasoning: (1) To provide a favorable setting for procreation (justifiable
state interest, but not one advanced by excluding same-sex couples from marriage as
fertility is not a condition of marriage); (2) To ensure the optimal setting for child
rearing (justifiable state interest, but not one advanced by restricting marriage to
opposite-sex couples); (3) To preserve scarce state and private financial resources
(limiting marriage has no rational relationship to the goal of economy)
iii. Notes: All three of the states arguments rested upon legitimate state goals, but the Court
found the classifications did not closely fit the goal
g. In Re Marriage Cases (p. 455)
i. Facts: A 1997 California statute limited marriage to unions between one man and one
woman, reaffirmed by a 2000 initiative limiting marriage to different-sex couples and
providing that the state would not recognize out-of-state same-sex marriage. Plaintiffs
argued that the discrimination against their relationships violated the equality guarantee
of the Cal. Constitution, arguing that the discrimination was subject to strict scrutiny for 3
reasons: (1) The exclusion of same-sex couples from state marriage law rested upon two
suspect classifications, sex (fail), and (2) sexual orientation (succeeds), and (3) denied
those couples a fundamental interest in marriage
ii. Sex Discrimination: Fails on two grounds: (1) The challenged marriage statutes do not
treat men and women differently, and are distinguishable from Perez and Loving because
the antimiscegenation statutes at issue in those cases plainly treated members of minority
races differently from white persons; and (2) A statute or policy that treats men and
women equally but that accords differential treatment either to a couple based upon
whether it consists of persons of the same sex rather than opposite sexes, or to an
individual based upon whether he or she generally is sexually attracted to persons of the
same gender rather than the opposite gender, is more accurately characterized as
involving differential treatment on the basis of sexual orientation rather than an instance
of sex discrimination
iii. Sexual Orientation: Marriage statute properly must be viewed as directly classifying and
prescribing distinct treatment on the basis of sexual orientation
iv. Issue: Whether sexual orientation should be considered a suspect classification under
the California equal protection clause, so that statutes drawing a distinction on this basis
are subject to strict scrutiny (yes)
v. Rule: The most important factors in deciding whether a characteristic should be
considered a constitutionally suspect basis for classification are whether the class of
persons who exhibit a certain characteristic historically has been subjected to invidious
and prejudicial treatment, and whether society now recognizes that the characteristic in
question generally bears no relationship to the individuals ability to perform or
contribute to society
vi. Strict Scrutiny: In order to satisfy the strict scrutiny standard, the state must demonstrate
not simply that there is a rational, constitutionally legitimate interest that supports the
differential treatment at issue, but instead that the state interest is a constitutionally
compelling one that justifies the disparate treatment prescribed by the statute in question
the state must demonstrate that the distinctions drawn by the statute are necessary to
further that interest
h. Perry v. Brown
i. Facts: Prior to November 4, 2008, the California Constitution guaranteed the right to
marry to opposite-sex couples and same-sex couples alike. On that day, the People of
California adopted Proposition 8, which amended the state constitution to eliminate the
right of same-sex couples to marry
ii. Issue: Whether Prop 8 violates the Fourteenth amendment (yes)
iii. Rule: Although the Constitution permits communities to enact most laws they believe to
be desirable, it requires that there be at least a legitimate reason for the passage of a law
that treats different classes of people differently. There was no such reason that Prop 8
could have been enacted. Under Cal. law, same-sex couples had all the rights of
opposite-sex couples, regardless of their marital status. Prop 8 had one effect only
stripping same-sex couples of the ability to marry. An individuals homosexual
orientation is not a constitutionally legitimate basis for withholding or restricting the
individuals legal rights. The state had no interest in reserving the name marriage for
opposite-sex couples. By using their initiative power to target a minority group and
withdraw a right that it possessed, without a legitimate reason for doing so, the People of
California violated the Equal Protection Clause. Prop 8 is unconstitutional on this ground
i. Alienage
i. Strict Scrutiny & Rational Basis Review
1. Aliens as a class are a prime example of a discrete and insular minority for
whom such heightened judicial solicitude is appropriate
ii. Federal vs. State Authority
1. The federal authority over foreign relations and immigration has included nearly
plenary power over aliens
a. Thus, federal regulation of noncitizens is ordinarily subject at most to the
most lenient rationality review when challenged on equal protection
grounds
2. States, however, have less justification for treating noncitizens differently from
citizens, and the Supreme Court has reviewed their discriminations more strictly
3. States are yet allowed to bar noncitizens from certain state positions that are
involved in the governance or functioning of the state as a political entity
a. The Court has attempted to apply a pragmatic distinction between state
statutes that are economically protectionist that reserve economic
benefits for citizens and ones that are deemed to be rationally related to
reserving sovereign functions for citizens
j. Illegitimacy [non-marital children]
i. Intermediate scrutiny
ii. Historically many state laws have treated children born outside of marriage less favorably
than marital children
iii. The Court has rejected the argument that statutes penalizing a child for the status of her
parents are a justified means of encouraging marriage
iv. The most recent precedents apply an intermediate level of scrutiny
1. The Court has held that a state may not categorically deny intestate inheritance to
children born out of marriage, but may limit intestate inheritance to persons who,
during the life of the deceased, were adjudged by a state court to be his children
k. Age
i. Rational basis review
IV.
iv. Physical and Mental Disability [see rational basis with bite]
v. Sexual Orientation
1. Unless a state action was so completely unexplainable it would pass rational basis
review
c. Rational Basis With Bite
Not a legitimate purpose if it is driven by animus or hostility to the group Burden is
easily shifted to state actor
i. Physical and Mental Disability
1. Cleburne-style rational basis review starts with a presumption of constitutionality,
but might be understood to allow the challenger to create a prima facie case of
invalidity by showing no rational basis. Such a prima facie case would shift the
burden to the state to demonstrate a rational and neutral justification for its
discrimination and thus add bite
d. Intermediate Basis
State must prove that it has an important state interest and the statute is substantially
related to those reasons and necessary to achieve those goals Burden was initially on
the plaintiff, but VMI switches the rule, putting the burden on the state to show that it
serves important governmental objectives and the means employed are substantially
related to those governmental objectives
i. Gender
ii. Illegitimacy
e. Intermediate Basis With Bite
i. Exceedingly persuasive language written by Bader-Ginsberg
f. Strict Scrutiny (Equal Protection Exception)
The state has burden to prove that it has a compelling state interest and that the state
action is necessary and narrowly tailored to carrying out that state interest
i. Facially Racial
iv. National Origin
ii. Facially Neutral with Davis Intent
v. Alienage
iii. Ethnicity
Fundamental Rights
a. Two Pockets of Fundamental Rights
i. Bill of Rights
1. The expressly stated rights under the Bill of Rights (protected under either the 5 th
or 14th Amendments)
2. Incorporation process (by the Court) of the Bill of Rights into the 14 th Amendment
to be made applicable to the states
b.
c.
d.
e.
VI.
1. Constitutional rights that are non-textual rights not found in the Constitution in
any meaningful sense but put there by judges
2. By case law have been applied as strongly as the Bill of Rights
a. E.g., Roe v. Wade, Lawrence v. Texas The Right to Privacy [one
category]
3. Considered Constitutional Rights, not because the document can be fairly
interpreted to include them, but because they are simply too important to be left
out
4. There is some textual basis for enforcing non-textual rights
a. Ninth Amendment The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by the
people
b. Fourteenth amendment No state shall make or enforce any law which
shall abridge the privileges or immunities of the citizens of the United
States
Natural Law, Fundamental Rights
Generally, the government cannot infringe upon fundamental rights unless strict scrutiny is met
i. Government must justify its interference with the fundamental right by making a showing
that such interference is necessary to achieve a compelling government interest
These interests in life, liberty, and property are so important that the government cannot infringe
upon them absent a very powerful justification
The court read substance into due process [the most revolutionizing thing the Court
accomplished in 240 years]
1. The court can decide to use one over the other, or issue the holding based on both
doctrines
b. Procedural Due Process
i. Invoked where a whole group is denied a right that has been deemed fundamental and is
denied by a lack of a procedure
c. Substantive Due Process
i. Modernly, substantive due process applies to regulations affecting fundamental rights of
personhood rather than rights of property.
1. Where a law affects the rights of all persons with respect to a specific activity
ii. Strict scrutiny review applies o laws which burden the exercise of fundamental rights
1. Right to vote
2. Right to travel
3. Right to privacy
4. Rights under the First Amendment
iii. Recognizing the differences between Equal Protection and Substantive Due Process
1. SDP Birth control devices are outlawed
2. EPC Birth control devices are outlawed for unmarried women
VII.
iii.
iv.
v.
vi.
VIII.
iv. Analysis: There is no reasonable ground for interfering with the right of free contract in
this instance. There is no contention that bakers as a class are not equal in intelligence
and capacity to men in other trades, nor that they are not able to assert their rights and
care for themselves without the protecting arm of the State, interfering with their
independence of judgment and of action, nor are they wards of the State
v. Rule: The statute necessarily interferes with the right of contract between the employer
and employees. The general right to make a contract in relation to business is part of the
liberty of the individual protected by the Fourteenth Amendment; The statute has no
direct relation to and no such substantial effect upon the health of the employee as to
justify the statute as health law
vi. Notes:
1. The courts decision in Lochner signaled a reinvigorated judicial hostility (both
state and federal) to legislation enacted at the behest of labor unions. Lochner
was the basis for subsequent invalidation of state laws making yellow dog
contracts (whereby the employer would require a promise by employees that
they not join a union) unlawful.
2. The courts eventually overrule Lochner in three separate opinions
b. West Coast Hotel v. Parrish (p. 495)
i. POC: Wage and hour laws generally do not violate the Due Process Clause
ii. Analysis: The court upheld a state law establishing a minimum wage for women,
overruling the Lochner-like Adkins v. Childrens Hospital. The opinion stated that the
Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the
deprivation of liberty without due process of law. A regulation which is reasonable in
relation to its subject and is adopted in the interests of the community does not violate
due process. The exploitation of a class of workers who are in an unequal bargaining
position with respect to bargaining power and are thus relatively defenseless against the
denial of a living wage is not only detrimental to their health and well-being but casts a
direct burden for their support upon the community
c. Williamson v. Lee Optical (p. 496)
1. POC: An Oklahoma statute prohibited opticians from duplicating or replacing
lenses without a written prescription from an ophthalmologist or optometrist. The
Court ruled that the statute did not violate due process, stating that it is for the
legislature, not the courts, to balance the advantages and disadvantages; There
will be minimal rational basis inquiry for judicial review of economic regulations
as a matter of substantive due process
ii. Notes:
1. The Court stated that there should be strong deference to state legislature and the
court will uphold economic regulations giving lowest rational basis review
imaginable, protecting state sovereignty
d. Notes:
i. Since the New Deal, the US Supreme Court has almost completely abandoned the
Lochner strict scrutiny approach to social and economic legislation
IX.
i. The Supreme court has held that the federal government, each state, and municipal
governments have the power to take private property for public use through the power of
Eminent Domain
ii. The Takings Clause limits the power of Eminent Domain by requiring that just
compensation be paid if private property is taken for public use
iii. The just compensation provision of the Fifth Amendment has been incorporated under the
Fourteenth Amendment so that it applies to states [Chicago, B. & Q. Railroad v. Chicago]
iv. Includes any type of government seizing of land
b. Four Taking Clause Queries
i. Government Taking
1. Was there a government taking?
2. Three types:
a. Direct Seizures
b. Physical Invasions
i. Possessory Takings (e.g. flooding)
ii. Greatly diminish owners value
c. Regulatory Takings
i. Easements
ii. Overregulation of private property
iii. Zoning is generally not a taking government regulating how land
can be used (fencing) applies to everyone in the community
ii. Property
1. Is it property that was taken?
iii. Public Use
1. If there has been a taking of property, was it for public use?
2. Purely a term of art
3. The government can condemn private property and then turn it over to a private
developer
iv. Just Compensation
1. If there has been a taking for public use, then was just compensation paid?
a. Measured by terms of loss to the owner, not in terms of value to the
government
b. E.g., House once within 10,000 feet of turnpike, now 100
v. [If the answer to all four queries was yes, than there was a permissible taking]
c. Kelo v. City of New London (p. 497)
i. Facts: The city approved a development plan that was projected to create in excess of
1,000 jobs, increase tax and other revenues, and revitalize an economically distressed
city. In assembling the land needed for the project, the citys development agent
proposed to use the power of eminent domain to acquire the property from unwilling
owners in exchange for just compensation. The city then planned to give the property to
a private developer to turn the space into development to support a new state park
ii. Issue: Whether the citys proposed disposition of the property qualifies as public use
within the meaning of the Takings Clause (yes); whether the citys development plan
serves a public purpose (yes)
iii. Minor Rules: (1) A State may not take the property of A for the sole purpose of
transferring it to another private party, even though A is paid just compensation; (2) The
State may transfer property from one private party to another if future use by the public is
the purpose of the taking
iv. Rule: It is appropriate for the Court to resolve the challenges of the individual owners,
not on a piecemeal basis, but rather in light of the entire plan. Because that plan
unquestionably serves a public purpose, the takings challenged here satisfy the public use
requirement of the Fifth Amendment; Promoting economic development is a traditional
and long accepted function of government; A taking by eminent domain will be upheld as
long as it is rationally related to a conceivable public purpose and just compensation is
paid to the owner
v. Notes: Approved reasons for state takings: (1) Better balanced, more attractive
community; (2) Eliminating the social and economic evils of a land oligopoly
d. Penn Central Transportation Co. v. City of New York (p. 504)
i. Facts: Following refusal of the NYC Landmarks Preservation Commission to approve
plans for construction of a 50-story office building over Grand Central Terminal, which
had been designated a landmark, the terminal owner filed a taking challenge to the
landmarks preservation law
ii. Issue: Whether a taking has occurred (no)
iii. Rule: Whether a particular restriction will be rendered invalid by the governments
failure to pay for any losses proximately caused by it depends largely upon the particular
circumstances in that case, including, (1) the economic impact of the regulation on the
claimant; and (2) the character of the government action
iv. Holding: The NYC law is not rendered invalid by its failure to provide just
compensation whenever a landmark owner is restricted in the exploitation of property
interests (NYC specific, the Court could rule different in another case)
v. Notes:
1. This historical designation was ruled not to be a taking, but historical designations
can be takings
2. The court applied simple, rational basis standard of review
3. Dissent (Rehnquist) there was a taking
environmentally sound growth. As a result of the two directives, nearly all development
on a substantial portion of the property subject to TRPAs jurisdiction was prohibited for a
period of 32 months
ii. Issue: Whether a regulation prohibiting any economic use of land for a 32-month period
constitutes a per-se taking of property requiring compensation under the Takings Clause
(no)
iii. Rule: In order to determine if a temporary taking has occurred requires careful
examination and weighing of all the relevant circumstances
X.
1. Facts: Appellants, several couples and their physician, brought suit, seeking the
overturn of a Connecticut statute prohibiting the use of contraceptive devices and
the giving of medical advice on the use of such devices. The state had not
prosecuted the statute since 1879
2. Rule: A penal statute is not ripe for constitutional challenge unless it is enforced
by the state enacting the statute
3. Notes: Court ducked the issue of whether there is a fundamental right to
contraception
iii. Griswold v. Connecticut (p. 556)
1. Facts: Appellants are the Executive Director and Medical Director of Planned
Parenthood League of Connecticut who gave information, instruction, and
medical advice to married couples about birth control. No statute prohibited the
sale of birth control devices, but it was a crime to use any drug, medicinal article,
or instrument for the purpose of preventing conception. Appellants were charged
with accessories to that offense
2. Rule: The right of marital privacy lies within the penumbra of the Bill of Rights.
Therefore, it is a fundamental right and strict scrutiny is the standard of judicial
review
d. Abortion
i. Roe v. Wade (p. 570)
1. Facts: A Texas statute prohibited all abortions except for the purpose of saving
the pregnant womans life. Roe, an unmarried pregnant woman, brought a class
action challenging the constitutionality of the Texas law
2. Rule: The Constitution protects a womans right to choose to terminate a
pregnancy prior to the fetuss viability, but such a right is not unqualified and
must be considered against the important state interest in regulation [such as the
stage of the pregnancy]
a. Therefore, if there was a government regulation impeding that right to
abortion, it would be analyzed and reviewed under strict scrutiny review
b. The decision leaves the State free to place increasing restrictions on
abortion as the period of pregnancy lengthens past viability, so long as
those restrictions are tailored to the recognized state interests
c. Roe protects a womans right to choose but limits that right as the period
of pregnancy moves forward
3. Trimester System:
a. First State cannot interfere with womans right to abortion (with
consultation of physician) and strict scrutiny is applied if state wants to
regulate the womans right
i. No fetus counter-rights
b. Second State can regulate abortion procedures but only to protect the
womans health (i.e. states can prohibit abortions where the abortion
would put the womans health at risk)
c. Third States can prohibit abortions unless child birth would endanger the
womans life
i. Rational basis review is applied
d. Trimester System is eventually overruled in favor of pre-viability and
post-viability with an undue burden basis of review
4. Holding: (1) A recognition of the right of the woman to choose to have an
abortion before viability and to obtain it without undue interference from the
state; (2) A confirmation of the States power to restrict abortions after fetal
viability as long as the law contains exceptions for pregnancies which endanger a
womans life or health; and (3) The principle that the state has legitimate interests
from the outset of the pregnancy in protecting the health of the woman and the
life of the fetus that may become a child
5. Notes:
a. Roe does not address the question of when life begins
b. State abortion laws must always make exceptions for extreme health
problems and death of mother; Restrictive state abortion laws which do
not include provisions allowing for abortion to protect health and life of
mother are defective
4.
5.
6.
7.
8.
criminal liability if she delivers a fetus beyond the prohibited point by mistake,
the Act is not a trap
Issue: Whether the act imposes an undue burden because its restrictions on
second-trimester abortions are too broad (no)
Rule: Traditional D&E is not prohibited
Issue: Whether the federal government may ban partial birth abortions (yes)
Issue: Whether the Act is unconstitutional for its failure to include an exception
to protect the health of the mother (no)
Note: A real set-back for womens right to choose; women still retain a right to
choose in pre-viability, with the exception of partial-birth abortions
Introduction
a. The Due Process Clauses of the Fifth and Fourteenth Amendments state that a person is entitled
to due process of law before she is deprived of certain important interests by the government
i. Fifth Amendment: Nor shall any person be compelled in any criminal case to be a
witness against himself, nor deprived of life, liberty, or property, without due process of
law
ii. Fourteenth Amendment: Nor shall any state deprive any person of life
b.
Example:
i.
c.
d.
The government establishes a rule that a supervisor can fire any employee he believes
guilty of using illegal drugs
1. Neither public employment nor drug use is a fundamental right, nor are public
employees a suspect class
2. However, the absence of a hearing process may violate procedural due process,
even though no substantive constitutional right is involved
Usually a concern where a judge or administrative official is enforcing a governmental directive
in a way that deprives an individual of life, liberty, or property
i. There must be state action
Substantive Due Process is concerned with how legislatures regulate behavior; Procedural Due
Process looks at very general rules and considers whether they are correctly applied in individual
cases
e. The Court has held that due process does not require a legislature or other governmental
lawmaking body adopting a statute or rule that applies across a class of persons to provide any
special procedural protections
f. Goldberg v. Kelly (p. 639)
i. POC: Welfare recipients challenged the termination of their benefits without a prior
evidentiary hearing The Court ruled that the continued receipt of welfare benefits is
property whose deprivation triggers the protections of the Due Process Clause; The
Constitution requires that any time an adverse government action threatens to cause
grievous harm a pre-termination hearing is required
ii. Notes:
1. The extent to which procedural due process must be afforded the recipient is
influenced by the extent to which he may be condemned to suffer grievous loss
Brennan
2. The closest the Court comes to ruling that there is a right not to be poor
XII.
XIII.
XIV.
iii.
Ex:
1.
2.
Burning a draft card [violation of law that states you cannot desecrate the draft
card; it does not matter why you desecrated the draft card, law has a purpose that
is non-speech related i.e. administrative reason for keeping cards intact]
Regulation prohibiting all leaflets on law school campuses
b. Content Based
i. Rule: Strict scrutiny of government regulations against speech that is content based
ii. Ex:
1. Regulation prohibiting distribution of leaflets that are critical of the law school
iii.
1.
Incitement to Violence
a.
b.
Illegal Advocacy
Clear and Present Danger Test [Schneck v. US]
i.
c.
2.
Fighting Words
a. Words that by their very utterance inflict injury or tend to incite an
immediate breach of the peace, are no essential part of any exhibition of
ideas, and are of such slight social value that any benefit that may be
derived is outweighed by the social interest of order and morality
b. Words, said without a disarming smile, that ordinary men know are likely
to cause a fight
c. Look at: Cohen Test
i.
ii.
iii.
iv.
The audience;
Results of the speech;
Length of the speech;
The actual result of the speech; and
d.
i.
ii.
i.
ii.
3.
Obscenity
a.
4.
a.
5.
iv.
1.
2.
3.
Overbroad
Vague
a. A law is unconstitutionally vague if a reasonable person cannot tell what
speech is prohibited and what is permitted
Viewpoint Discrimination
a.
d. Notes
i. Values in the First Amendment
1. Marketplace of ideas
2. Search for truth
ii. Incorporated under the 14th Amendment
iii. Speech is not just verbal speech
1. Also written speech and actions
2. Voting can be considered speech
iv. What is state action?
1. A law that prohibits speech in some way; or
2. A state actor carrying out a law that prohibits speech in some way
3. The state action is reviewed, not the speech
a.
b.
XV.
free expression; (4) and if the incidental restriction on alleged First Amendment freedoms
is no greater than is essential to the furtherance of that interest
XVI.
1. POC: The convictions of members of the Communist Party under the Smith Act
were upheld by the Court which held the Act was constitutional because it was
directed at advocacy not discussion. In each case, the courts must ask whether the
gravity of evil, discounted by its improbability, justifies such invasion of free
speech as is necessary to avoid danger in order to determine if the speech is
protected or not
viii. Yates v. US
1. POC: Fourteen individuals who were accused of advocating, teaching, and
intending to overthrow the government were convicted for violation of the Smith
Act. Court upheld the conviction under the rule that mere advocacy and teaching
for overthrow of the government is not enough to punish the otherwise protected
liberty of free speech and free press. There must be something more than just
belief, they must be urged to perform some action either now or in the future
ix. Brandenburg v. Ohio (p. 672)
1. Facts: Appellant, a leader of the Ku Klux Klan, was convicted under the Ohio
Criminal Syndicalism statute for advocating the duty, necessity, or propriety of
crime
2. Issue: Whether the Ohio statute violates the First Amendment (yes)
3. Rule: The first amendment protections do not permit a state to forbid or proscribe
advocacy of the use of force or of law violation except (1) where such advocacy is
directed to inciting or producing imminent lawless action and (2) is likely to incite
or produce such action
4. Notes: Modifies the Clear and Present Danger test
x. Virginia v. Black (p. 674)
1. Facts: Respondents burned crosses in KKK rallies and in the yard of an AfricanAmerican. They were convicted of violating Virginias cross-burning statute
which provided that it shall be unlawful for any person, with the intent of
intimidating any person, to burn a cross on the property of another, or other public
place.
2. Issue: Whether the cross-burning statute violates the First Amendment (no)
3. Rule: True Threats Exception True threats encompass those statements where
the speaker means to communicate a serious expression of an intent to commit an
act of unlawful violence to a particular individual. The speaker need not actually
intend to carry out the threat. Rather, a prohibition on true threats protects
individuals from the fear of violence and from the disruption that fear engenders,
in addition to protecting people from the possibility that the threatened violence
will occur
4. Notes:
a. Court cant ban all cross burnings, only those that are carried out with
intent to threaten or intimidate
1. Facts: Appellant was convicted of maliciously and willfully disturbing the peace
by offensive conduct after he entered a courthouse wearing a jacket with the
words Fuck the Draft on the back. Defendant did not engage in, not threaten to
engage in, nor did anyone as a result of his conduct in fact commit or threaten to
commit any act of violence
2. Issue: Whether California can excise, as offensive conduct, one particular
scurrilous epithet from the public discourse, either upon the theory that its use is
the employment of fighting words or that the states, acting as guardians of
public morality, may properly remove the offensive word from public vocabulary
(no)
3. Rule: Emotive speech that is used peacefully to get attention is protected by the
Constitution
4. Notes:
a. Even if fighting words can be regulated, ordinarily profanity cannot
b. Plummer v. City of Columbus The Court struck down an ordinance
prohibiting menacing, insulting, slanderous, or profane language
c. State v. Harrington Abusive language spoken with intent to annoy or
alarm cannot be constitutionally regulated
ii. Hate Speech Exceptions
1. Beauharnais v. Illinois (p. 707)
a. POC: Petitioner was convicted of violating a state statute that outlawed
the dissemination of printed racist materials; The Court affirmed ruling
that (1) libel is not speech protected by the First Amendment, (2)
collectivities as well as individuals can be libeled, and (3) it was within
the realm of reasonable legislative choice to create such a law to ease
racial tensions in the state
b. Notes:
i. No longer good law
ii. Collin v. Smith IL town could not constitutionally prevent white
supremacist, anti-Semitic Nazi Party march
2. Wisconsin v. Mitchell (p. 708)
a. Facts: Respondent allegedly led a group of individuals to attack a young
man based on his race. The lower court increased his sentence on account
that it was a hate crime
b. Issue: Whether the state statute allowing for increased sentences in hate
crimes violates Respondents First Amendment rights (no)
c. POC: A state may consider whether a crime was committed or initially
considered due to an intended victims status in a protected class
iii. Offensive Speech in the Electronic Media
1. The precepts of Cohen and R.A.V. apply with full force to print media such as
newspapers, but not necessarily to electronic media, such as televisions or radio
2. Broadcast media is less protected
3. Federal Communications Commission v. Pacifica Foundation (p. 713)
a. POC: A broadcast of patently offensive words dealing with sex and
excretion may, under the First Amendment, be regulated because of its
content since such words offend for the same reasons obscenity offense
and broadcasting is uniquely available to children
v.
vi.
vii.
viii.
1. POC: In defamation case the Court held that the NYT rule did not apply because
the plaintiff was neither a public official nor public figure. The Court laid down
two rules governing liability in such cases: (1) The States may define for
themselves the appropriate standards of liability for a publisher or broadcaster of
defamatory falsehood injurious to a private individual [thus the plaintiff need only
prove negligence]; and (2) To recover damages, plaintiff must satisfy the NYT
test even if he is a private figure.
iv. Hustler Magazine v. Falwell (p. 682)
1. POC: A public figure cannot recover damages for emotional distress without
satisfying the NYT test
XVII.
3. Rule: The inclusion of the public sidewalks within the scope of the statutes
prohibition results in the destruction of public forum status and, under the First
Amendment, that section of the statute is unconstitutional as applied to those
sidewalks [The sidewalks are still subject to reasonable time, place, and manner
restrictions]
4. Notes:
a. Defines Time, Place, and Manner Regulations
b. TPM regulations are enforceable as long as the restrictions are:
i. Content neutral;
ii. Narrowly tailored to serve a significant government interest; and
iii. Leave open ample alternative channels of communication
iii. Hill v. Colorado (p. 721)
1. POC: A Colorado statute made it unlawful for anyone within 100 feet of a
healthcare facility to knowingly approach within eight feet of another person,
without that persons consent, in order to pass out leaflets, display a sign, or
engage in oral protest, education, or counseling. The statute was prompted by
anti-abortion activities at clinics offering abortions. The Court upheld the statute
as a valid time, place, or manner regulation, finding it content-neutral on the
grounds that it applied on its face to all viewpoints and subjects
iv. Ward v. Rock Against Racism (p. 722)
1. Facts: Central Park contains an amphitheater near an apartment building and a
designated quiet area of the park. In an effort to maintain the quietness of the
area, the city has imposed a restriction on all performances to use specified
amplification equipment and staff provided by the city
2. Issue: Whether the citys restriction of amplification is Constitutionally valid
(yes)
3. Rule: Even in a public forum the government may impose reasonable restrictions
on the time, place, or manner of protected speech, provided the restrictions are
justified and content-neutral, that they are narrowly tailored to serve a significant
governmental interest, and that they leave open ample alternative channels for
communication of the information; Government regulation of a public forum does
not have to be the least restrictive alternative
4. Notes:
a. Rock highlights the importance of the content distinction in First
Amendment analysis content-neutral regulations receive lower scrutiny
c. Government-Supported Speech
i. Government employees and recipients of government funds do have less protected
speech
ii. Rust v. Sullivan (p. 727)
1. Facts: Title X of the Public Health Service Act was enacted by Congress to
provide federal funding for family-planning services. The government ruled that
abortion was not to be considered a method of family planning acceptable to the
use of the funds. Petitioners brought suit seeking injunctive relief against the
implementation of the regulations based on their First Amendment constitutional
right to political expression. They felt that the Act was unconstitutional because it
suppressed their abilities to proscribe treatments which aligned with their own
political views
2. Issue: Whether the regulations as set forth by the government infringed on the
constitutional right of others (no); Whether the restriction conditions the receipt
of a benefit on the relinquishment of a constitutional right (no)
3. Rule: The government may fund activities to the exclusion of others without
necessarily infringing on the rights of citizens to express their own views; The
government has not suppressed Petitioners rights to express their views and
engage in the activities of their choosing, it has merely chosen not to fund them;
The regulations do not require recipients to forfeit rights, instead they mandate
that the activities be kept separate and distinct from the funded program
4. Notes:
a. Teacher fired for writing a newspaper letter criticizing the school boards
fiscal policies because the letter was not shown to undermine the
performance of his teaching duties or otherwise interfere with the
operation of the schools, the school had no more interest in restricting this
speech than that of any citizen: Letter was protected speech as it was a
matter of public concern and didnt affect the efficiency of public services
b. Whether the government may condition the payment of benefits to its
employees upon their waiver of First Amendment rights
iii. Rosenberger v. Rector and Visitors of the University of Virginia (p. 730)
1. POC: The University in the name of the Establishment Clause refused to
provide its otherwise customary student organization publishing payment for a
religious newspaper. The Court concluded that the University had engaged in
viewpoint-based regulation and struck down the funding ban
iv. Legal Services Corp. v. Velazquez (p. 731)
1. Facts: The LSC was established as a nonprofit corporation to distribute federal
funds to local legal aid organizations for the poor. A government condition on the
use of LSC funds prohibited grant recipients from engaging in efforts to amend or
otherwise challenge existing welfare law. LSC argued that these restrictions were
permissible under Rust
2. Issue: Whether the funding restriction violates the First Amendment (yes)
3. Rule: The funding provision violated the First Amendment by regulating private
speech and insulating federal law from legitimate judicial challenge; Advice from
the attorney to the client and the advocacy by the attorney to the courts cannot be
classified as governmental speech even under a generous understanding of the
concept
v. Other Relevant Holdings:
1. Prison authorities have broad but not unlimited powers to regulate prisoners
correspondence, including their reading materials
2. High school students could not be expelled for wearing black armbands to protest
the Vietnam War
3. On the grounds of inculcating the schools moral values, high school students may
be suspended for using sexual innuendos in a speech at a school assembly
4. A high school principal may censor articles in the high school newspaper so long
as their actions are reasonably related to legitimate pedagogical concerns
5. It is reasonable for a principal to conclude that a banner promoted illegal drug use
in violation of established school policy and that failing to act would send a
powerful message to the students in her charge
XVIII.
iii. A law is unconstitutionally overbroad if it regulates substantially more speech than its
stated purpose and if a person whom the law constitutionally can be applied can argue
that it would be unconstitutional as applied to others (do not need standing)
iv. Board of Airport Commissioners v. Jews for Jesus, Inc. (p. 741)
1. Facts: The airport adopted a resolution banning all First Amendment activities
within the terminal at LAX. The resolution therefore did not merely reach the
activity of respondents (leafleting), it prohibited even talking and reading. There
was no saving construction of the resolution
2. Rule: Such a law that confers on police a virtually unrestrained power to arrest
and charge persons with a violation of the resolution is unconstitutional because
the opportunity for abuse, especially where a statute has received a virtually openended interpretation, is self-evident
v. Examples:
1. Vague but not overbroad A regulation prohibiting students to wear gang colors
to discourage gang activity
a. Vague because a reasonable person may not know which colors are gang
affiliated
b. Not overbroad as the regulation does not affect anything other than
demonstrating gang membership
2. Overbroad but not vague A regulation banning all people ages 13-30 from
wearing the colors black and yellow
a. Not vague as a reasonable person knows how old they are and what the
colors black and yellow are
b. Overbroad as it regulates substantially more activity than the stated
purpose
XIX.
strength of the state interest, taking into account whether there are less burdensome
means of accomplishing the state goal
iii. Stansbury v. Marks (p. 755)
1. POC: The defendant offered a Jew as a witness, but he refused to be sworn as it
was his Sabbath. The court fined him, but the defendant afterwards waived the
benefit of his testimony and the witness was discharged of the fine
iv. Wisconsin v. Yoder (p. 757)
1. Facts: Amish defendants were convicted for refusing to send their children to
school after eighth grade, violating state-law school requirements. Evidence
showed that Amish children received vocational training at home and that
Defendants believed attending high school would destroy the Amish way of life
2. Rule: When a true religious interest exists, a state cannot enforce a law which
abrogates that interest provided the public interest in enforcing the law is not
otherwise burdened [when the interests of parenthood are combined with a free
exercise claim a particularly strong showing on the part of the state is required]
v. Sherbert v. Verner (p. 758)
1. POC: A Sabbatarian was denied unemployment benefits because she refused to
work on Saturdays. The Court held that the denial of benefits unconstitutionally
forced her to choose between following the precepts of her religion and forfeiting
benefits, or abandoning her religion in order to accept work (court applied strict
scrutiny here)
vi.
vii.
viii.
ix.
b. Its principal or primary effect must be one that neither advances nor
inhibits religions; and
c. Must not foster an excessive government entanglement with religion
County of Allegheny v. ACLU (p. 775)
1. POC: The ACLU brought suit after two religious-holiday displays were placed
outside a government building.
The Court articulated a standard for
Establishment clause cases forbidding government endorsements of religion
[finding that the displays did convey a religious endorsement]
Capitol Square Review and Advisory Board v. Pinette (p. 776)
1. POC: The KKKs application to place an unattended cross on Capitol Square a
public forum was denied on Establishment Clause grounds. The Court voted in
favor of the Klan, finding that the endorsement test does not apply at all to private
religious expression in a public forum
McCreary County v. ACLU (p. 776)
1. POC: Executives of two counties posted a version of the Ten Commandments on
the walls of their courthouses. The Court ruled that placing religious documents
on court house walls is a violation of the Establishment Clause
Lee v. Weisman (p. 787)
1. Facts: School principals in the public school system of the city of Providence are
permitted to invite members of the clergy to offer nonsectarian, Judeo-Christian
invocation and benediction prayers as part of the formal graduation ceremonies
2. Issue: Whether including clerical members who offer prayers as part of the
official graduation ceremony is consistent with the Religion Clauses (no)
3. Notes:
a. The relative voluntariness of graduation attendance is irrelevant
Important Questions
f. Whether, how, who, and to what degree the constitution is interpreted
i. The Supreme Court
g. How the political and social dynamics of the 19th and 20th Centuries have impacted upon the
Constitution and caused it to change
h. Is there a right to privacy
i. Yes, Roe v. Wade
i. Is there any substantive meaning to the 5th and 14th Amendments Due Process Clause
i. Why does this matter in the 21st Century specifically in regards to the right of privacy
j. To what degree was the original Constitution a compromise document a slave affirming
document
k. What is the current substance of the due process clause and what difference does it make?
l. When can a speaker be punished because of the reaction of the audience?
m. When should the speaker be punished because of the risk that it will incite the audience to
violence against the speaker?
n. Why should obscenity be unprotected at all? Whats wrong with lustful thoughts? Does it cause
harm? Doesnt the roth definition focus on thought control? Should the government be allowed
to decide what is moral and then suppress speech that does not advance that particular morality?
Causes anti social behavior and violence against women and children- why is obscenity
unprotected because it could cause violence, but nazi and klan speech is at this point fully
protected?