Constitutional law II outline

Incorporation
The bill of rights does not, in and of itself, apply to the states. Must incorporate them into the 14th amendment
for them to apply to the states. But how do you do that?

-Start with Dred Scott: case kicked out of court on lack of diversity jurisdiction- Scott was black and not
a citizen; therefore, there was no diversity of citizenship to be in federal court because there was no
federal question jurisdiction yet.
- After the Civil War, we get the 13, 14, and 15th amendments.

-The 14th amendment applied only to states and included the privileges and immunities, equal
protection, and due process clauses. Most people thought the privileges and immunities clause
would be the most important.
-Slaughterhouse cases- court threw out each claim under the 14th amendment:
-Equal protection (EPC)- court says this clause was meant to protect only racial claims
and in this case, it was not a racial claim
- Due process (DPC)- court says this clause only applies to process and in this case there
was no claim for procedural process, only substantive process, which did not exist at the
time.
-Privileges and Immunities (P&I)- court says this clause should be read very narrowly;
only 2 (and later another was added) instances that fall under this clause:
1) right to go to foreign embassy to ask for help
2) right to petition legislator.
3)*** right to travel (from Saenz v Roe)

- Twining v NJ- court suggests for the 1st time that there may be some substantive element to due
process that is related to the BOR that comes from natural law.

-Palko v. Connecticut- a right is a component of the DPC of the 14th amendment only if thy are
of the very essence of a scheme of ordered liberty. To abolish them is to violate a principle of
justice that is fundamental to the people. Basically, if you cannot conceive of a free and just
society without the right, it would be incorporated in to the DPC (must reference all free
societies, not just US). Under this application of incorporation, usually only the 1st amendment
could be incorporated because you could conceive of a free society without most of the other
rights.

- Adamson v California- holding same as Palko- concurring and dissenting opinions are
important:
o Black’s opinion- against judges using subjective judgment about certain rights but if
there is something in the constitution, should enforce it to the hilt. Once you start
incorporation, must totally incorporate, otherwise the judges are just choosing what
they think is important (framers told us what was important when they wrote the
BOR).
o Frankfurter’s opinion- accepts there is some substantive value to the DPC but not the
whole BOR. Should only protect things so egregious that it violates the fundamental

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 idea of due process, but should not look to the BOR at all to make that decision.
Under this theory, you get none of the BOR and basically no rights at all.

****MODERN RULE****
- Duncan v Louisiana- when judging whether a right should be incorporated, should look to the
Anglo-American traditional model of justice.
o What is incorporated?
 1st amend
 3rd amend
 4th amend
 5th amend (except for the grand jury requirement)
 6th amend
 8th amend
o What is NOT incorporated?
 7th amend (the anglo-american history or equity does not give a jury in civil
trials)
o Not sure?
 2nd amend
 9th amend
 10th amend
o Justice Harlan would apply the strength of each right differently to the states than the
federal govt- this position has never been accepted, however.
o “jot-for-jot” theory- once a right is incorporated, it is incorporated under the same
strength to both the state and federal govts.

Substantive Due Process

3 categories:
1) incorporation doctrine (explained above)
2) economic due process- use of the DPC to substantively protect property rights from govt regulation.
This body of law is now dead.
3) privacy rights

Economic due process

Economic theory that swept the nation in the early 19th century because of capitalism. Corporations
wanted to protect their ability to use their profits as they saw fit- began suing states for passing
legislation that interfered with this “right.”

-Munn v Illinois- shipping rate cap on grain (part of the Granger laws)- court rejects the claim
that this is a violation of the companies property rights- this case establishes the public need
theory (whatever property rights exist within the DPC do not apply to property subject to public
need, ex. food.

-Santa Clara v Southern Pacific- establishes that corporations are persons under the 14th amend
and they have access to EDP.

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 - Minnesota Rate case- first time SC ruled in favor of EDP claim- said the state regulation of
railroad rates was unconstitutional.

- Allgeyer v Louisiana- summary of what EDP became- any govt regulation of contract was a
violation of EDP (ex. minimum wage and labor laws were violations)
***EXCEPTION: Regulations protecting food (public need) and women

- Lochner v NY- regulation of workforce in bakeries- right to contract. protecting the rights of
individuals to contract
***EXCEPTION- public health (like structural mining safety, similar to pubic need
exception)

What courts went after in the Lochner era:

1) maximum hour laws
2) yellow dog contract laws (could not prohibiting employees from joining union)
3) minimum wage laws
4) price regulations (EXCEPTION still is public need from Munn)
5) monopoly laws
a. EXCEPTION- laws regulating for women tended to be upheld.

- Nebbia v NY- OVERRULED LOCHNER- court upheld regulation of milk prices. Says property
is not absolutely protected by the constitution. Says there is no substantive component of DP.
Basically says regulation is only unconstitutional if it is discriminatory or irrational to the point
that it is arbitrary.

-West Coast Hotel v Parrish- overruled Adkins- upheld a minimum wages law for women.

- US v Carolene Products- upheld statute that outlawed filled milk (seemed like a little arbitrary
statute). Basically if there is any statement of facts that the legislature can rely on in making the
law, the statute is fine and not arbitrary.

-Williamson v Lee Optical- statute that prohibited opticians from selling glasses unless had a
prescription from ophthalmologist or optometrist upheld. State even refused to say why they
passed the statute, and the court tried to reason for the state!

-Ferguson v Skrupa- statute that only lawyers could be debt adjustors upheld- says it is not for
the court, but the legislature, to decide whether this is wise legislation.

Privacy

-Buck v Bell- statute authorizing state to sterilize insane patients; SC found this statute
constitutional and says it is better for the entire world to prevent that kind from procreating some
of their own kind.

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 - Meyer v Nebraska- statute making it illegal to teach foreign languages in school. SC finds this
legislation unconstitutional under SDP citing that there are things the govt just cannot tell you
what to do.

- Pierce v Society of Sisters- statute illegalizing private schools- SC finds the statute
unconstitutional under SDP that had just been articulated by Meyer.

Both Meyer and Pierce are still good law, but the theory behind them is not exactly the
same anymore.

-Skinner v Oklahoma- statute authorizing sterilization of habitual criminal violators of moral

turpitude crimes- problem was that these crimes excluded white collar criminals. Justice Douglas
tries to reconfigure the case into a fundamental right equal protection issue. BUT in order to do
that, you must define a fundamental right, which is what Douglas was trying to get around by
making this an EPC issue. So basically, Douglas created a fundamental right to procreate from
nothing- he avoided the issue of SDP altogether.

-Griswold v Connecticut- also a Douglas opinion. He liked the idea of privacy but just could not
figure out where it came from. SO he created the idea of the penumbra (from 1,3,4,5, and 9th
amends)- says these amendments are all about privacy, which implies a right of privacy
generally. He says one of the things protected by this implicit right of privacy is the right not to
procreate or the right of marital privacy.
- Goldberg’s concurring opinion- says you only have to look at the 9th amend to find this
right of privacy.
- Harlan’s concurring opinion- goes beyond the majority opinion and explicitly uses SDP.
He says privacy is a right to freedom like in Meyer and Pierce. However, this right is not
absolute (ex. you can still criminalize adultery, homosexuality, etc…).
- dissenting opinion- says the majority is trying to Lochnerize and you cannot do that!
ABORTION

- Roe v Wade- statute making all abortions illegal unless the mother would have died- state
claims that the purpose of this statute was to protect the mother’s health and the unborn fetus.
The SC finds the statute unconstitutional. It looks to the history and tradition of abortion
regulation, and finds traditionally, abortions were illegalized to protect the women from abortion
butchers, but medical advances had now made abortions much safer. The court decides this case
under the 14th amend SDP. The court also talks about the fetus’ right. The state claims it is
protecting the fetus’ rights, but constitutionally, only a person has rights and a person is defined
as someone who has been born in every context of the constitution.
o Holding: established the trimester system (turns on fetus viability- ability to live
outside the womb)
 1st trimester: neither of the state’s interests (protecting woman or the fetus)
kick in because having an abortion in the 1st trimester is very safe and the
fetus is not viable at this stage
 2nd trimester: the state interest in protecting the woman’s health kicks in here
because 2nd trimester abortions can be dangerous; however, the interest in the
fetus does not kick in because the fetus is not yet viable.

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  3rd trimester: both state interests kick in here because the fetus becomes
viable.
o EXCEPTION: if the woman’s life is at risk, she is never banned from having an
abortion because no one is required to give up their life for another life.
o Dissenting opinion- (White and Rehnquist) there is no such thing as privacy because
it is not in the constitution.
o Alternative constitutional rationales to Roe:
 13th amendment- if the state prohibits abortion, basically it is making the
woman a slave or involuntary servant to the state for 9 months BUT response
to that is that she voluntarily got pregnant (response to that is she is not
voluntarily pregnant now)
 EPC- abortion regulation only affects women BUT the response to that is that
fetuses are a group that aren’t getting protection either and that this regulation
is trying to protect the fetuses who don’t have any rights at all.
 Establishment clause- banning abortion is basically endorsement of a
particular religious view and forcing it upon everyone.
- Cases stemming from Roe:
o Definition of viability

 Missouri v Danforth- gives definition of viability as the ability to live outside

the mother’s womb

 Colautti v Franklin- cannot make doctors liable criminally for aborting

fetuses- cannot 2d guess doctors in making the decision to abort.

 Webster- if a woman is believed to be more than 20 weeks pregnant, the

doctor is required to perform an amniocentesis test to determine exact age.
This is just a test, not a limitation, so the statute was upheld.

o General regulations on abortion

 Akron and Thornburgh- see support for Roe shrinking
 Webster- see above

 Casey- statute included: juvenile consent provision, reporting requirement,

medical emergency allowance provision, husband notification, informed
consent, and waiting period (these last three became the central issues of the
case)
• District court had used Marks v US to go against Roe
• SC- joint opinion- lists 4 factors to overturn a prior decision:
o Has the prior decision become unworkable? (here, roe is still
workable because it is written like a statute)
o Have people/society come to rely on the old decision? (here,
they have relied upon the availability of abortions in the even
that contraception fails)

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 o Has the law evolved in a way that undermines the principles on
which the prior decision was based? (here, if anything privacy
rights are much stronger and broader than at the time Roe was
decided)
o Have the facts that were the basis for the prior decision evolved
in a way that makes the prior decision wrong? (here the only
fact that pertains to Roe is viability and that has not changed)
• HOLDING: court says one of the basic flaws of Roe is its rigidity.
Medical technology has advanced to the point that there are no longer
rigid trimesters. The court holds that the state may discourage abortion
prior to week 24 (viability) as long as they are not banning it
altogether. This is subject to the undue burden analysis. An undue
burden is a substantial obstacle.
o The husband notification provision was struck down because it
imposed an undue burden on the pregnant woman.
o The informed consent and waiting period provision were
upheld because they did not impose a substantial obstacle on
the right to an abortion.

o Partial birth abortion

 Sternberg- statute banned partial birth abortions unless it was to save the life
of the mother.
• Background- there are 3 ways of performing abortions:
o Vacuum aspiration- basic way in the 1st trimester
o Dilation and evacuation (D&E)- safest method in 2nd trimester-
safer than carrying to term.
o Dilation and extraction (D&X)- usually required for breach
birth- fetus partially delivered, head collapsed and the rest
removed- sometimes safer for woman than D&E
• This statute did not intent to prohibit D&Es but the statutory
description applied to both dilation methods. Statute was found
unconstitutional because the state does not have an interest in
prohibiting certain methods of abortion because that does not protect
the fetus, just prevents certain kinds of abortions. Also the interest in
the woman does not kick in because these methods can be safer than
carrying to term.

o Abortion funding (equal protection/ fundamental rights arguments)

 Mayer v Roe- court held that Roe did not grant an absolute right to abortion,
only expressed protection against undue burdens. Denying funding is not an
undue burden imposed on the woman bc it is not the govt’s fault she got
pregnant.

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  Harris v Mcrae- court held there is no constitutional right not to be poor,
therefore the govt can refuse to fund medically necessary abortions.

 Webster- statute prohibited a public facility (any property leased or owned by

the state) or public employee from doing anything for the purpose of
encouraging or counseling women in non-medically necessary abortions. The
facility in question was a private hospital that leased the land for $1 a year
from the state. The court found the statute constitutional, which expanded the
financing doctrine to indirect, as well as direct, financing by the state.

 Russ v Sullivan- statute on federal family planning- if you get money from the
govt, then none of your employees can counsel or refer patients on abortions
even if asked about it or you lose all your federal money. Court found this
statute to be constitutional- basically says the govt doesn’t have to fund
anything. HOWEVER, this case may not be good law anymore under the 1st
amendment:
• Rosenberger- school would not give student activities fees to political
and religious groups. Student group wants to get funding- court finds
in favor of students. The court holds this case is different than Russ in
that in that case the govt was hiring people to speak on behalf of the
govt and could control who they gave money to. In this case, the
purpose of the fees was to disseminate a range of private opinion.
• Forbes- public tv station in Arkansas would not let 3rd party candidate
debate on air. The state won here bc the govt was serving the essential
function of a newspaper editor. It could make executive decisions as to
what was important to put on the air.

o Juvenile abortions

-Kerry v Population Services-extends Eisenstadt (availability of contraceptives) to

juveniles.

-Matheson- draws distinction between parental notification and parental consent

-Belatti v Baerd- court held that states could require juveniles to get parental
consent ONLY if there existed a judicial bypass (Belatti bypass), in which the
juvenile can go to court.
Belatti bypass: judge looks at 2 criteria
1) maturity of the applicant
2) best interest of the mother

- Hodgson and Ohio v Akron-statute that required both parents get notification and
48 hour waiting period. Court held that requirement of Belatti bypass applies to
both notification and consent.

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RIGHT TO FAMILY

-Village of Beltair- zoning regulation requiring single family residences. Court held that there is
no constitutional right to live with a bunch of unmarried people.

- Moore v City of East Cleveland- case in which a grandma was living with 2 grandchildren
that were cousins. The court held that the constitution protects the family because it is rooted
in the history and tradition of the country.
o Standard: the more what you want to do fits within this tradition, the more likely it
will be protected by the constitution.

-Zeblocki- statute holding that a parent who had child support payments could not get married
until he was paid up. Court strikes down this regulation, holding that people cannot be prohibited
from getting married because it is one of the most intimate rights protected by the history and
tradition of the country.

-Turner v. Saffley- prisoners have no fundamental rights BUT here this right at issue was the
right to marry, and the prisoner won!

-Michael H. case- what history and tradition do you look at? 1) the tradition of the marital unit
OR 2) the tradition of the biological parent having some relationship w/ his child.

-Troxel- statute giving grandparents the right to visit grandkids but did not consider parents’
desires. Court held that when there is an absolute conflict between parents and grandparents, the
parents win under the history and tradition standard because parents are closer to the children
than grandparents.

Marriage fails to trump funding interest:

-Ling- state statute limited aid to related persons living together, which gives people a
disincentive for living together, but financing is different so the govt wins.

-Bowen- court upheld a requirement that child support payments could be used to offset
govt funding for kids- follows the previous case in that govt aid is treated differently than
govt regulations in general.
SEX
Two types of freedom of association:
1) 1st amend implicit constitutional right: right to association with other people to engage
in activities that are protected by the 1st amend (speech, religion, etc.).
2) SDP- right to intimate association

-Roberts v Jaycees- statute prohibiting discrimination in public accommodations.

The lawsuit was brought because women were not allowed in a club. Court held
there was no 1st amend right to association here because they were not
participating in a 1st amend activity. The court also rejected the SDP intimate
association claim.
Definition of intimate association:

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 1) smallness of group
2) high degree of selectivity
3) seclusion from others in critical aspects of the relationship

-Bowers v Hardwick- (overruled by Lawrence) statute prohibiting sodomy. Court

sees no history and tradition protecting homosexual sodomy (virtually every state
had a regulation on this). majority opinion says that almost all law is a moral
regulation and that is ok.

-Lawrence v Texas- similar statute to Bowers. OVERRULES BOWERS. Court

decided this case of SDP privacy rights.
HOLDING:
1) morals alone are not enough to regulate behavior- must also
have some concrete harm to a person (ex. incest) or an
institution the state is trying to protect (ex. marriage in the
context of gay marriages)
2) cannot look at the history and tradition of an issue at the time
the constitution was written- must look at the evolving tradition
of an issue (ex. less sodomy laws in states tending to move
away from regulating sex)

- Williams- Alabama sex toys outlawed- P’s asking for new fundamental right to
be recognized. Court held having sex toys was not a fundamental right

Recognizing new fundamental right: 2 step analysis

1) must describe exactly what you want the court to recognize
2) court must determine whether the right is rooted in the history and tradition of the
country and (if it is crucial to a free society-from Palko) BUT the court abandoned
Palko in Duncan-so the “crucial to free society” part is unsure.

COHABITATION

-Hollenvaugh- librarian and custodian shacking up and got fired- ISSUE- does the library have
any state interest in prohibiting employees from cohabitating?

HARMLESS LIBERTIES

-Swank- cop riding around w/ girl on motorcycle- fired- raises both 1st amend and intimate free
association claims-court held 1) for 1st amend, the purpose is not to protect casual chitchat, but
speech important to society and 2) for intimate association, there has to be some intimate
relationship, which there was not here.

- Pence- mustaches on bus drivers banned- court held this was an arbitrary infringement and had
no rational relationship to any state interest.

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 -Rathert- cop w/ pierced ear fired. Police dept held that it detracted from police professionalism.
Court sides w/ police department and held that this case was different than Pence in that here the
police department is worrying about public moral.

-Palm beach topless ordinance- male jogger sues

State interests alleged: 1) stabilizing land value, 2) maintain history and tradition of the
town.
Court struck down ordinance and held there was no evidence that topless joggers impede
on land value or that there was a history of jogging w/ shirts on in Florida!

RIGHT TO DIE

Cruzan- similar facts to Schiavo. State statute required clear and convincing evidence of the
patient’s intent. Parents did not have enough evidence to have feeding tube removed.
HOLDING: court upheld statute because it did not interfere w/ the patient’s right to die
so much as to make it unconstitutional. The court acknowledges some constitutional
protection for making right to die decision but does not say it is a fundamental right or
how strong the right is.

Gluxerg- assisted suicide case- HOLDING: court held that affirmative actions of assisted
suicide are different than withholding treatment as in Cruzan. There is no constitutional right to
assisted suicide.

State interests in right to die cases:

1) preservation of life in general
2) protection of ethics in the medical profession (assisted suicide goes against the
Hippocratic oath)
3) protection of vulnerable groups
4) avoidance of involuntary euthanasia

Quill- EP case- companion to previous case. Must have SDP right to get EP. There is no
substantive due process right for assisted suicide and therefore no equal protection right.

Pruneyard- state law can always add to your rights but can never diminish the rights given in the
federal constitution

Procedural due process

Goldberg v Kelly-everything is property to the person getting it so everything gets PDP.

Roth - OVERRULES Goldberg- teacher w/ 1 year contract let go after that year. Has no property
interest because he was given what he was promised already.

modern standard for PDP

1) identify a property or liberty interest that the govt has taken away
2) determine what process is due (see Matthews)

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Step 1: Identify property or liberty interest
PROPERTY INTERESTS
State defines the property interest
Court defines the procedure.

Logan- employment discrimination case- gets PDP bc he had a property interest in getting a
hearing w/in 120 days.

Perry- similar to Roth BUT P claims the school had an implicit expectation that if you had a 1
year contract, it would be renewed unless you had just not done your job. If this is true, a
property interest had been created.

Loudermill-statute saying civil servants could only be fired for malfeasance, misfeasance, or
nonfeasance. The statute created a property interest within the definitions of why they were fired.
OVERRULES Arnett which had created the bittersweet analysis- if the statute creating
the property interest also defines the procedure, the only procedure you can receive is
what is defined in the statute. Now, however, the statute can define procedure up to the
point of being unconstitutional and the court may look at what the state has suggested as
proper procedure.

Goss v Lopez- student suspended from school- court held he had a property interest in an
education because of statutes requiring all children go to school and creating comprehensive
public school systems.

LIBERTY INTERESTS
Court defines the liberty interest (w/ exception of parole statute cases)

Bodily integrity- if the state whacks you w/ a stick, they are infringing on your liberty interest
Ingram- kid paddled- has a liberty interest in keeping the state off his body

Prison
Mitchum-guy moved from one prison to a crappy prison. Has no liberty interest- once
you are in prison, they can move you wherever they want.
EXCEPTION: Jones- if they want to move you from general population to a
psych ward, you have a liberty interest because of the stigmatic consequences of
being in the psych ward.

Allen- parole case- court characterizes parole cases as liberty interests BUT treats it as a
property interest in that it allows the state to define the interest. (looks to the parole
statute)

Indefinite civil commitment

Pusha- state may civilly commit someone as long as it bears the burden of proving:
1) the person is mentally incompetent

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 2) he is likely to be dangerous in the future
3) cannot control himself in the future (from Hendrix)
must be separate findings on steps 1/2 and step 3 (from Kansas v Crane)

Reputation
Wisconsin- reputation is a liberty interest subject to PDP protection.

Paul v Davis- reputation plus standard- must have some concrete harm as a result of
damage to your reputation.

Megan’s Laws
Otto v Doe-challenged under ex post facto clause- court held that these laws a
civil, public safety laws, not criminal and not subject to the ex post facto clause.

Connecticut v Doe- court goes through 2 step PDP analysis- bypasses step one
and assumes there is a liberty interest. In step 2, says it was already satisfied
because he got a trial.

Doe v Pryor- from 11th circuit- court rules in favor of P- held that the implications
of the guy being on the list implicates a SDP privacy right and therefore a liberty
interest automatically.

Child abuse hotlines

Cases in favor of P
Bohn v Dakota- created a liberty interest in family solidarity- by sticking
its nose into family affairs, the state has infringed on a constitutionally
protected liberty interest of keeping family affairs private.

Valmont v Baine- if your name gets on the list, the repercussions are
enough to give you a liberty interest.

Case in favor of state

Jones- because the list was not available to the public, there were no
implications upon reputation and no liberty interest.

REMEMBER: Just because you have a liberty interest does not mean you have a
substantive right BUT if you have a substantive right, you automatically have a liberty
interest

State of mind requirement: must prove state intentionally robbed you of a property or liberty
interest
Pratt v Taylor- hobby kit “stolen” from prison mailroom- this is not enough to prove state
intentionally took it.

Hudson- negligently dropped pillow and P tripped on it- not enough because it has to be
intentional, not negligent.

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Step 2: what process is due?

1)Matthews v Eldridge-state requiring proof you are still disabled to continue getting social
security. The state said the P was not disabled anymore and took away his SS. He is given an
appeal, but during this appeal he is given no money- wants ruling that PDP keeps his money
going to him while the appeal is pending.

Test (always do this under step 2 of PDP)

1) identify the magnitude of the P’s interest
2) look at risk of erroneous deprivation
3) efficiency interest of the govt (how much will it cost?)

2)Zimmerman v Burch- pre-deprivation relief- wanted a hearing before the govt too away your
interest not an appeal after the fact. This is the mental institution case (pleasantly nutty)

Test
1) was the deprivation predictable by the state?
2) Was there a pre-deprivation remedy available?
3) Was the state officials’ conduct authorized and therefore attributable to the state?

3) Mullane v Central Hanover Bank- notice

STANDARD: is notice reasonably calculated under all the circumstances to apprise the
interest party (P) of the pendancy of the action and affords him the opportunity to present
objections?

Dusenbery v US- registered letter mailed to prison that they were selling car of inmate.
Never got the letter. Must look at it from the perspective of the state- was it reasonable to
think the registered letter would give notice? Court says yes, even though there is no
evidence that he even mailed a letter. Basically, any statement by the def of attempt to
give notice will suffice.

Other PDP issues:

Supermax prisons
Austin v Wilkinson- prisoners do have a liberty interest in Supermax prisons but it
is unclear as to whether that applies to lower levels in prison.

Existing state remedies

Pratt, Hudson, Ingram-must take all existing state remedies into account when
deciding whether you received adequate process (look at internal law- within the
agency itself- and state law- both tort and criminal)

Immigrants

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 Zadvydas v Davis- the 14th amend is written in terms of persons, not citizens, so
ALL people being kicked out of the country get process (also indefinite detention
w/out hearing is unconstitutional)
Punitive damages (court actually characterizes this as SDP issue)
BMW v Gore- gives 3 guideposts to determine when punitive damages are
unconstitutional:
1)degree of reprehensibility of def’s conduct
2) disparity between actual harm suffered and punitive damages
3) difference between punitive damages awarded and civil penalties
authorized in comparable cases

State Farm v Campbell- advisory as to how to enforce the guideposts from BMW
1) as a matter of DP, you cannot take into account out of state activity by
the def.
2) anything above a single digit ratio (9:1) is presumed unconstitutional-
this can be overcome in cases where def’s conduct is particularly
reprehensible
3) must specifically figure what the civil penalties are (usually very small
because of mandatory caps on recovery)

Grading
Univ of Michigan v Ewing-in the absence of faith, courts will not get involved in
this issue

Univ. of Michigan v Horowitz- must give faculties the widest range of discretion
in grading

Susan M. v NY Law school- reaffirms Ewing, BUT you do have a property interest
if the school promises you an appeal process in something like the handbook.

Equal protection

Pre-war litigation (see notes p 22)

Civil War legislation

13th amend-codified emancipation proclamation
Civil rights act of 1866- provided all legal rights to freed slaves- focuses mostly on commercial
rights bc it was passed under the commerce clause
14th amend- contains sec 1 (DP, P&I, and EP) and sec 5 (giving congress power to pass laws to
carry out the provisions of the amend.
15th amend- voting rights
Civil rights act of 1871- provides criminal sanctions for conspiracies to violate civil rights
KKK act of 1871 (42 USC 1983)- there is a remedy both equitable and legal against anyone
acting under color of law for violating constitutional rights
Civil rights act of 1875- gives rights other than commercial- basically same thing as CRA of
1965

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 Judiciary act of 1875- gave federal question jurisdiction to all federal courts.

SC cases from this era (basically gutted all the legislation that had passed)
Slaughterhouse cases- gutted 14th amend (see earlier notes)

US v Reese-civil rights act unconstitutional bc it was not limited to race (see previous case)

US v Crookshank- could not use 1870 act to prosecute lynchers bc there was no evidence the
men were lynched for trying to exercise their right to vote

CRA of 1875 held unconstitutional bc it regulated private behavior and only state actions could
be regulated by legislation passed under the 14th amend.

Jim Crow legislation/cases

Plessey v Ferguson- 14th amend not intended to enforce social integration- established separate
but equal doctrine

Cumming v BOE- not a violation of separate but equal to turn black high school into elementary
school bc black students could go to the next county over.

Missouri v Canada- paying for black to go to school out of state held unconstitutional bc it was
not equal- you have to provide a resource in the same jurisdiction if you make a school available
for white students.

Sweat v Painter- UT law school case- UT has qualities incapable of being objectively measured
(it is special)- cannot make an “equal” law school for blacks.

McLoren v Oklahoma- physical barriers between black and white students unconstitutional- if
you admit the student, you must treat him the same way as white students

Brown v Board of Education

Court held:
1) cannot look at original intent of the framers bc public education is a 20th c
phenomenon
2) public education is so important that whatever equal protection is supposed to protect,
it definitely applies to education
3) intangible factors make it inherently unequal
4) segregation has psychological effect on black children.

Brown II- enforcement of integration- court ordered integration w/ “all deliberate speed”

Bowling v Sharpe- applies integration to federal schools in DC by performing reverse

incorporation of EP into the 5th amend DPC (which applies to the federal govt)

Response to Brown

15
 Cooper- court held that once they had ruled on an issue and said what the law is, it is embodied
by the supremacy clause and becomes the law of the land- it applies immediately to both the
parties involved and the general public.

Hawkins- UF law school case- see p 25 notes

Griffin- school tried to cut checks to parents to send kids to private school. Court held this
unconstitutional bc of the intent to avoid desegregation.

Green v County School Board- overruled Brown II- must desegregate immediately

Swann- HOLDING
1) court could not impose absolute quotas on racial representation in schools, BUT may
use ratios as a starting point
2) some one race schools may remain in a desegregated schools system if the system is
deemed unitary under Brown.
3) Courts may gerrymander the districts to achieve racial distribution
4) Courts may order busing to achieve integration

Intent
School cases
Must show schools intentionally discriminated, which was easy in the south bc statutes
specifically indicated that. Outside of the south, it was more difficult to show intent.

Keyes- simply showing a handful of schools are segregated does not prove the whole
school district is intentionally segregated. If P shows several schools are segregated, the
burden shifts to the def to explain the segregation to be non-discriminatory.

Non-School Cases
Washington v Davis- application of Keyes to non-school settings.

STANDARD: de facto (numerical) discrimination does not violate EPC.

De jure discrimination must be shown (intent)
Intent can be inferred by the way the statute is applied (ex. in this case,
intent could not be inferred bc there was evidence black applicants were
trying to be excluded- in fact, they were trying to diversify the police
force.
Other examples
1) veterans getting preference on civil service exam- women
losing these jobs bc most vets are male. Could not show intent!
2) McKlesky v Camp- study showing 4 times more likely to get
death penalty if you kill a white person than black. Could not
show intent- no evidence that you are given the death penalty
BECAUSE you kill a white person. The system IS racial, but
not intentionally racial, and that is constitutional.

16
 Arlington Heights: framework for determining impermissible intent

Test:
1) numbers- impact of a particular policy (must rise to significant level- See Yick Wo
and Gomillian)
2) sequence of events leading to adoption of statute- ex. school shuts down public
schools to avoid integration case.
3) Departure from the norm- ex. procedural departures- govt agents meet in the middle
of the night to conduct business (smells fishy)
4) Contemporaneous statements by govt officials- if they are dumb enough to say it, it
can be held against them! HOWEVER, if just one official makes a statement, may not
be able to hold the whole agency responsible.

Integration
Milliken I- white kids bused from Grosse Pointe to Detoit- held unconstitutional- cannot bus
cross district BUT if the suburban schools are show to be created to segregate from the inner
city, that is different.

Milliken II-approval of injunctions meant to upgrade schools as a cure for the consequences of
illegal discrimination.

Jenkins I- how do you pay for upgrade of school? Judge cannot impose taxes- he can order what
needs to be done but the state has to decide how to pay for it.

Jenkins II
HOLDING:
1) How do you determine when the effects of discrimination have been cured? Look to
test scores in comparison to suburban test scores BUT must show the previously low
test scores were the result of discrimination (not bc of economic status, etc…)
2) judge cannot draft injunction to attract white kids to the school (violation of Milliken
I- amount to cross district busing). Only ok if it is meant to cure the effects of
discrimination.

Dissolving injunctions
Pasadena v Spangler- once a school has been declared unitary and the injunction dissolved, the
only way you can reinstate an injunction is to show that the return of segregation in schools is the
result of additional intentional discrimination by the school board since the 1st injunction.

Oklahoma City v Dowell- when is a school unitary and ready to dissolve injunction?
1) look at extent of good faith compliance w/ original injunction by the school board
2) look to whether vestiges of past discrimination have been eliminated to the furthest
extent possible

Freeman v Pitts- judges should dissolve injunctions piece by piece. Once dissolved, it is
governed by Pasadena.

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 Universities
US v Fordice- are historically black colleges unconstitutional? Yes, bc there is not a compelling
state interest to have a university, part of which is focused on racial segregation. Court ordered
the schools to be reconfigured so that each school would attract more students of the other race
and for the black school to receive funds to upgrade facilities.

Afro-centric high school

Cannot take one segment of society (race of gender) and exclude the rest

Non-school EP race cases

Overt discrimination based on race
Strauder v WV-statute prohibiting blacks from serving on juries struck down

Koromatzsu- war is different (BUT case is technically overturned in light of evidence that
the govt defrauded the court in asserting national safety problem w/ Japanese)

Facially neutral statutes premised on racial bigotry

Loving- statute prohibiting interracial marriages- if statute is premised on racial
discrimination, even if facially neutral, it is unconstitutional.

Administrative discrimination cases

Yick Wo v Hopkins-statute enforced almost 100% of time against Chinese held
unconstitutional.

Gomillian v Lightwood- like previous case- gerrymandering to exclude black residents

held unconstitutional (usually cities have the right to configure districts as they please)

Palmore- custody taken away from mother bc she remarried black man (court had said it
was in the best interest of the child not to grow up in mixed family)- SC says this is
unconstitutional- if the state action reflects private bigotry, even if state renounces that
bigotry, it is a violation of EPC.

Sec 5 of 14th amend- congress’ authority to pass statutes

Burney- In order to sue a state for damages, the state must either waive his 11th amend immunity
OR congress can abrogate a state’s 11th amend immunity.
-PROBLEM: Seminole Tribe v Florida: congress cannot abrogate a state’s immunity in
a statute passed under the commerce clause, only under the 14th amend.
- Back to Burney: SC strikes down statute that said govt could not do anything that
substantially burdens religion w/out a compelling interest and pursuance of that interest
through LRM (least restrictive means). Court says the statute was not authorized under
sec 5 of 14th amend (which incorporates the 1st amend) bc the statute does not enforce the
provisions of the 14th amend (which would be the free exercise clause of the 1st amend bc
that is incorporated) but changes substantive law.

18
 Standard: In order for the state’s immunity to be waived, and therefore P gets damages
against the state, the statute must have been passed under sec 5 of the 14th amend
(remember all amendments under incorporation). To be passed under this section, the
statute must ENFORCE the amendment’s provisions, not change substantive law.
Dept of Human Resources v Smith- counselors fired for using peyote in religious ceremonies.
Prior to this case, the standard under the free exercise clause was the substantial burden test.
Under Smith, no longer hold states to the compelling interest standard. If the state has a law of
general applicability, it can be applied to everyone across the board, even those who violate it for
religious reasons. RFRA passed in direct response to this case.

HOLDING: The court says the statute goes beyond the rights the court says people have
under the 1st amend. This is changing the law, not enforcing it and could not be passed
under sec 5 of the 14th amend so it is unconstitutional.

Katzenbach v Morgan- held it is ok for congress to expand rights under sec 5 of 14th amend.
Contrary to Burney.

***How do you have Katzenbach AND Burney then?

In Burney, the court said that Katzenbach is a statute outlawing literacy tests as a prophylactic
remedy to take into account other things states were doing that did amount to violations of the
EPC. Establishment of congruent and proportional analysis- standard for identifying the
proper remedy for an injury congress is trying to prevent. (actually it doesn’t make any sense-
the court was just trying to justify keeping the voting rights act while keeping Burney)

***Congruent and proportional analysis***

Must convince court the statute is congruent and proportional to redress the injury
congress has identified- the injury must be one that the court itself has identified as a
constitutional violation.

What is congruent and proportional?

Florida Prepaid v College Savings- state defends patent theft under 11th amend
immunity. P says there is a federal patent law abrogating this right. State responds w/
Seminole Tribe (cannot sue under statute passed under commerce clause). P responds that
it was passed under 14th amend to remedy unconstitutional takings by state actors. Look
at C&P analysis: court held this was not C&P bc in enacting the statute, congress
identified no pattern of patent infringement or constitutional violations (takings under 5th
and 14th amends) by states.

Kimmel v Florida- no pay raises for FSU employees. People hired later paid higher due to
market rate increase. Sued under Discrimination Employment Act for damages. Court
held statute unconstitutional under Burney bc congress had shown no pattern of
discrimination by the states under the C&P analysis. Problem here is that age is a rational
basis group and people are not shown to discriminate against people based on age unless
it is totally irrational and arbitrary and almost nothing is irrational discrimination.
Congress must have an abundance of evidence of a pattern of totally irrational

19
discriminatory behavior by the states to justify this statute bc that is the constitutional
standard for age discrimination.

Board of Trustees v Garrett- nurse who was fired after she got cancer sued under portion
of ADA requiring states to make reasonable accommodations for people w/ disabilities.
Court held the statute unconstitutional bc not C&P. congress had not shown abundance of
evidence of violations by states.
Dissent- Breyer has clerk go through all testimony in congress to identify every
instance of state discrimination against people w/ disabilities. Majority says these
instances were isolated, not a pattern.

Hibbes- P wins under the Family Medical Leave act, which gives employees 12 weeks
unpaid off from work to deal w/ family emergencies. Passed to protect women who are
usually the ones having to deal w/ family problems. Court classifies this as a gender case
(intermediate scrutiny) Court says this is C&P bc there is a lot of evidence of people
getting fired for having to take off work. (P wins- not like Kimmel and Garrett bc it is
heightened scrutiny-need less evidence of state pattern of f-ing up)

Tennessee v Lane- P sued under ADA title 2 (access provision), which says no person w/
diability should be excluded from services, programs and activities of public interest. The
state defers to Garrett, saying it is a compelling state interest not to put an elevator in the
courtroom bc it is cheaper. Court says this case is a fundamental rights EP case, which
requires strict scrutiny (it is a fundamental right to have access to the courts to defend
yourself in a criminal proceeding). Congress needs very little record of states screwing up
under strict scrutiny so the P wins here- statute is C&P. (It all depends on the building
here thought- there is no fundamental constitutional right to have access to a hockey rink,
for example)

A fundamental right is basically anything in the constitution, plus privacy.

These cases may or may not be fundamental rights cases:

Hunter v Erickson- city council passes ordinance prohibiting
discrimination based on race, then citizens put referendum on the ballot
invalidating the ordinance. Court held this unconstitutional bc you cannot
change the political process to disadvantage a racial minority.

Washington v Seattle School District- opponents of busing to achieve

racial integration put proposition on the ballot that would prohibit school
boards from requiring busing. This is also a change of system case. By
making the state change its policy, it is diluting the power of the racial
minorities in the city.

Crawford- citizens put referendum on ballot prohibiting the California SC

from interpreting the California EPC any differently than the federal EPC.
The SC says this is ok to do bc it is a change in substantive law, not the
political system.

20
 Evans- Colorado’s three big liberal cities wrote ordinances prohibiting
discrimination based on sexual orientation. Then the state put on the ballot
an amendment that would negate that ordinance. The city sues. SC says
the amendment is unconstitutional under rational basis bc it targeted
homosexuals through rank prejudice (that is usually the only way to win a
rational basis claim)

Affirmative Action
Only 2 compelling state interests have been recognized:
1) remedial (applies to both educational and employment AA)
2) educational diversity (applies only to educational AA)

Intent requirement still applies- must show proof of past intentional discrimination.

Education cases:
Bakke- AA at UC Davis med school- fairly rigid program (see p 34 in notes)- establishes
that race is race. Racial AA programs get strict scrutiny just like the discrimination cases.
School asserted 3 interests to justify AA:
1) remedial (but the court says faculties are not equipped to implement remedial
AA programs)
2) improve health care of inner city (but there is no record that more minority
doctors will achieve this result)
3) educational diversity (this is a legitimate interest BUT the strict quota system
will not accomplish that goal)
STANDARD:
“Race as a plus”- must take into account many different diversity issues; race can be a
plus BUT NOT the only factor.

Podberesky v Kirwan- 4th COA case- AA program giving merit based scholarships to
blacks challenged by Hispanics. School gave 4 rationales for the program: 1) recitify poor
reputation in black community, 2) blacks underrepresented in school, 3) very low
retention rate for blacks 4) hostile atmosphere for blacks on campus. School loses under
the narrow tailoring aspect of AA (see notes p 38-39)

Hopinwood- held Bakke unconstitutional but was later overruled by Grutter. UT law
school- used 2 different systems for admissions for blacks and Mexican Americans.
Holds diversity is not a compelling state interest.

Univ of Michigan v Grutter- law school case- program upheld- used race plus as a factor.
Established critical mass objective. Must still avoid rigid quotas. (also this is where
O’Connor makes her statement that AA programs will no longer be needed in about 25
years)
See Scalia’s dissent in notes p 39

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 Univ of Michigan v Gratz-under grad case- program struck down bc system of numbers
was too absolute.

Employment and set asides

Wygant-much more likely to uphold AA in hiring programs than lay off programs.

Sheet Metal Workers v EEOC- court imposed AA program on employer who had
engaged in hiring discrimination based on race. Remember you CANNOT have a rigid
system and there must be state action. Here the state action is satisfied bc the court (state
actor) is imposing AA upon a private actor.

US v Paradise- Court instructed Alabama highway patrol to implement an AA program

bc they had never hired a black person. The highway patrol did this but never promoted
any. Court said they had to promote some too. Court imposes rigid quota system on them.
They appeal to the SC saying you cannot have a rigid quota system. Court says there can
be a judicial decree imposing a rigid quota system ONLY if nothing else has worked.
(look to the record to see what else has been tried) This is the one EXCEPTION to the
Powell rule of flexibility.

Fullilove- requirement of 10% set aside for MBEs- court held it was flexible bc you
could get out of the set aside if there were not enough people in the geographic area to
fulfill the quota.

Must have a “get out” program in order to be flexible.

City of Richmond v Cr owson- virtually identical program to previous case. Only

change was in set aside number (upped from 10% to 30%) SC strikes down this program
as unconstitutional bc in Fullilove it was a federal program and the federal govt can do
things the states just cannot do. Federal govt not bound by 14th amend (which is later
overturned in Aderand). Court says the state has no compelling interest here (tried to
justify it as remedial) bc you cannot speculate how many minority businesses you think
would exist if not for discrimination in the past. You have to tell the courts exactly why
and how many absence MBEs is attributable to discrimination. Also you cannot rely on
statistics from other areas- has to be from the jurisdiction in which you wish to
implement the program.

Metro Broadcasting- NOT GOOD LAW

***OVERRULED BY Aderand- makes Crowson the ultimate law. Facts- the

stature giving 10% stipends to MBE subcontracting bids was held unconstitutional.

STANDARD: 3 general principles of AA

1) skepticism- strict scrutiny for race based AA
2) consistency- race is race
3) congruence- federal and state govt get same application

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 AA based on gender:
Lamprecht- program looks like Metro Broadcasting but based on gender. Struck
down bc the numbers could not back up the state’s assumptions that women-
owned stations would play more women-targeted programs.

Summary of AA:
1) talk about the state’s compelling interest (can only be 2)
2) talk about narrow tailoring of the program
a. what race neutral efforts were made to address the problem before resorting to
race cognizant methods
b. must conform the remedy to past discriminations by the particular govt
agency trying to implement the AA program
c. must develop extensive findings of the nature of past discrimination
(numerical data)
d. must prove past discrimination was so egregious it amounted to
unconstitutional intentional discrimination
e. if there is a remedial program, it can only be done by some agency having
political accountability (from Bakke, ex. legislature, executive officials in an
agency that answers to the govt)
f. programs must be temporary (from Grutter)
g. hiring programs good/ lay off programs bad (from Wygant)
h. judges can get away w/ more than agencies or universities who are
implementing voluntary AA- assumption is that there is proof of past
discrimination in the courts (from Paradise)
i. availability of waiver (flexibility)

Rational basis discrimination

Roystarguano- gives the nomenclature to use when deciding rational basis cases- reasonable and
not arbitrary, fair and substantial.

New Orleans v Dukes- current standard- classification must be rationally related to some
legitimate state interest.

Railway Express-city council outlaws advertising on trucks for any business not owned by the
truck owner- city claimed this was a safety issue- court upheld ordinance saying it would not 2nd
guess the city as to what they felt about traffic safety.

Williamson v Lee Optical- also see in SDP- optician case- here the state did not even give an
interest but was still upheld- not 2nd guessing legislature.

Minnesota v Cloverleaf Creamery- law banning plastic milk containers- state gives completely
inaccurate reasoning but court still upholds law. State is not required to convince the court of the
correctness of their legislative process.

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 Fitzgerald v Racing Association of Central Iowa- state charges higher taxes on slot machines in
race tracks than on riverboats. Again the court won’t 2nd guess the legislature, and upholds the
statute.

Beezer- MTA refuses to hire anyone who takes methadone, even though none of the jobs are
safety related. City says this is a public relations matter- people don’t like people who have been
on drugs. SC says this is an acceptable reasoning and upholds the statute.

Fritz- federal govt takes over railroad retirement fund. Came up w/ really arbitrary system of
allocating benefits. The statute was not written or read by congress but the court says this is a
rational relationship and upholds the statute.

EXCEPTIONS TO RATIONAL BASIS (P WINS)

Moreno- food stamp statute that was intended to keep hippies from participating
in the food stamp program. Statute struck down as unconstitutional bc rank
prejudice is never a rational basis.

Romer v Evans- seen earlier in political representation- statute was predicated

upon rank prejudice towards homosexuals- not constitutional.

Cleburne v Cleburne Living Center- here the court treated mental retardation as
an intermediate scrutiny group (usually treated as rational basis). Residential
zoning statute prohibiting mental retardation home. City gave 2 reasons for its
policy: 1) protection of high school kids nearby (court says this doesn’t work bc
some of the residents went to that HS); 2) protection of residents bc home was on
floodplain (court says this doesn’t work bc there was a nursing home nearby also
and they didn’t seem so worried about those people getting flooded out).
Ordinance is struck down as unconstitutional. Court rules under Moreno- rank
prejudice, BUT Justice Marshall says this is not rational basis but intermediate
scrutiny.

Intermediate scrutiny (gender)

Prior to 1970s, women got nothing from EPC. Bradwell, Minor, and Muller all used the rationale
of paternalistic protection of women to uphold law practice, voting, and labor laws, respectively.

Reed v Reed- Court uses rational basis scrutiny to strike down a statute that automatically
favored men over women in administration of estates.

Criteria for identifying new groups for heightened scrutiny standard:

Brennan’s opinion from Fronteiro v Richmond
1) history of discrimination against the group
2) is the characteristic that defines the group immutable? (not able to be
changed)?
3) Is the characteristic congenital (born w/ it)?
4) Is the group politically powerless (look at numbers-so small they cannot
defend themselves in the political process)?

24
 5) Relationship between the characteristics that define the group and the nature
or the regulation (ex. Brown, there was no relationship between segregation
by race and education)?

Factors applied to gender:

Gender discrimination received heightened scrutiny, making the govt come up w/
substantial interest. Here, though you look to whether the govt’s interest is merely
romantic paternalism. If this is their interest, it is not substantial and
unconstitutional.
HOWEVER, if the statute is based on “real difference” between the
sexes, that is a substantial interest and may be constitutional.
ALSO, administrative convenience is NOT a substantial interest.

Craig v Boren-statute prohibiting non-intoxicating beer to be sold to males under 21, but females
over 18 could buy it. This is the case that actually adopts the intermediate scrutiny standard
for gender. The state’s rationale is safety (boys get more DUI’s than girls). Court says the
numbers are inaccurate and actually boys and girls drive equally drunk but boys just get arrested
more and girls are escorted home. Statute unconstitutional.

LaFleur- regulation requiring female teachers to take maternity leave as soon as they get
pregnant. Struck down on romantic paternalism.

Stanton- statute requiring parents to support males until 21 and females until 18. struck down on
romantic paternalism.

Orr v Orr-statute requiring only men to pay alimony. Struck down on romantic paternalism.

Goldforth v California- statute giving men half survivors benefits only if he can prove more than
½ support came from his wife.

California v Webster- statute giving women higher multiple average of earnings in calculation of
SS benefits. Congress wrote this statute is an AA rationale. It was upheld.

Cahn v Shevin- statute giving widows (not widowers) an extra homestead exemption on property
taxes. Statute upheld as AA program bc women had been discriminated against in the workplace
in the past and would not have enough money to pay property taxes.

Slessinger-military promotional statute that discriminated against men- court says bc the military
discriminated against women in other aspects, this was an AA program trying to compensate for
that discrimination. regulation upheld.

Feeney- veteran’s preference on civil service exam (vets mostly men)- court upholds program bc
no evidence of intent to discriminate against women.

Gavaldi v Aio-state employee disability insurance program upheld bc you have to show
discrimination exists against the program beneficiaries AND among people paying for the

25
 program. Basically, both men and women benefited from the program in this case (several male
sexual conditions were classified as disabilities, but not pregnancy)

California statutory rape statute- upheld bc the statute evens out the risk between men and
women. Females already run the risk of getting pregnant so now the male runs the risk of going
to jail. This is NOT romantic paternalism.

Roscar-challenge to draft registration requirement. statute upheld bc men had conceded that the
military has the right to allocate combat positions to men and women differently. This is an
administrative convenience statute BUT the military is different and can get away w/ a lot more
in gender.

Lamprecht-gender is gender (AA in gender gets intermediate scrutiny like discrimination in

gender.

Mississippi College for Women-single sex nursing school held unconstitutional bc it perpetuates
the view that nursing is a female profession (since nursing is historically female).

VMI-all male military school- state’s justifications were 1) pedagogical- general preference of
single sex education and 2) admitting women would change the experience of students already
there. Court held that women should be admitted BUT the school does not have to change the
way it runs the school (except have separate quarters).

Open question: can you challenge the actual standard (ex. lowering the amount of upper
body strength required for firefighters)?

Intent is required in gender cases!!!!

WHY the statute is passed is key:

Good- remedial or real difference
Bad- romantic paternalism or administrative convenience

First Amendment
History- Levy book- 2 different ideas of free speech- see notes p 46

Anti-war free speech cases (WWI & II)

Schaffer- this was the standard before the SC got involved.
Test: bad tendency and effect- if material had the bad tendency an effect of leading to
obstruction of the draft, the 1st amend did not protect the speaker.

Schenk- conviction of creator of anti-draft pamphlet upheld.

Test: clear and present danger analysis- does not matter what the words are, but the
context in which they were said.
Holmes- would give not protection under 1st amend during wartime.

26
Debs v US- head of socialist party gave speech admiring draft evaders. Conviction upheld under
clear and present danger analysis (again, the key is context)

Frohwark- editor of German newspaper defended Kaiser; conviction upheld. 1st amend not
intended to give immunity for every type of speech.
Test: a little breath that would kindle a flame (context)

Masses- Learned Hand opinion (was overturned on appeal but later adopted by the court)
Test: incitement analysis- looks exclusively at the words (must use action words)

Abrams- pamphlets opposing American invasion of Russia. Conviction upheld as a clear and
present danger
Holmes’ dissent- people are stupid and why should the majority, who is wrong half the
time, be able to imprison someone for using words to disagree? Speech should be used in
the development of ideas. Here Holmes introduces the immediacy idea.

Gitlow-advocate of violent overthrow of the govt.

HOLDING: where the legislature has already identified the dangerous speech, clear and
present danger does NOT apply bc the legislature has already assessed what is a clear and
present danger in enacting the law.
Holmes’ dissent: CPD does apply bc congress’ ability to control speech is controlled by
1st amend- this is the law today under Brandenburg.

Whitney v California- Brandeis and Holmes’ concurrence- immediacy must be based on

reasonable grounds to think that something will happen immediately. They also use Hand’s
incitement language, adding immediacy.
Test: if there is any time between when the speech was made and the action was taken,
then the speaker is protected.

EXCEPTION: conspiracy –if the govt has evidence of speech in a group context where,
in addition to the speech there is an overt act (ex. buying fertilizer for a bomb) that is
linked to what was said, it is no longer speech but conspiracy prosecution.

Modern Rule
1) incitement (action words- ex. you should burn down the building!)
2) immediacy (ex. words led to a riot at that moment)
3) intent to cause the outcome

Dennis- court formally adopts the Brandeis/Holmes analysis BUT having said that, court turns
around and guts that analysis.
Test:- court must look at the gravity of the evil discounted by its improbability.

Yates v US- court modifies Dennis to say that a speaker must be concretely advocating
something not just abstractly advocating (which would be just believing in something)- this
basically goes back to the incitement “magic words” standard.

27
Scales- speaker has to be doing something w/ the specific intent of furthering the goals of his
group.

Bohn v Floyd- overturns Eugene v Debs- no concrete action words were used.

Watts v US- charged w/ threatening life of president. Conviction reversed. This was not a true
threat but merely a political hyperbole.

Brandenburg v Ohio- MODERN STANDARD- reiterates Holmes/Brandeis

Test: three components (govt must satisfy ALL)
1) clear and present danger- in context, speech is likely to lead to imminent
lawless action.
2) Incitement- use of action words (from Masses)
3) Intent- intended words to lead to imminent lawless action

Hess- this case turns on the imminence standard- depends upon how much the words look like a
definitive plan.

NAACP v Clayburne Hardware- SC uphold 1st amend free speech rights of boycott of white
businesses in Mississippi. Court says the language was not threats but advocacy of force or
violence. Turns on immediacy standard- any lapse in time between the speech and the action,
speaker is protected bc during that time, people have a chance to think about their actions. Also,
to be a true threat, an actual person being hurt has to be identified.

Kingsley International Pictures- advocacy of anything, political or not, is protected under

Clayburne as long as there were no actual depictions of sex that would violate obscenity statutes.

Hustler-kid killed himself trying to do autoerotic asphyxiation seen in Hustler. Speech is

protected as advocacy bc of the intent requirement in Brandenburg.

Threats
Watts-seen before. SC has not determined what is a true threat

BUT Courts of appeals have:

9th circuit- Nuremburg Files- TEST: reasonable speaker- would a reasonable

person (speaker) foresee the statement would be interpreted by the person spoken
to as a serious expression of intent to harm or assault?

2nd circuit- US v Kellner- TEST: if threat, on its face and under the circumstances
made, is so unequivocal, unconditional, immediate, and specific as to the
person threatened as to convey a gravity of purpose and imminent prospect of
execution, it is a true threat. (basically Brandenburg style)

28
 6th circuit- US v Alkhabaz- TEST: if the threat, bc its particular purpose is to
change the behavior of the person direct to, does not do so, or is not
communicated to that person, it is not a true threat.

8th circuit- rape fantasy letter case- the fact that he communicated the information
to someone he could have reasonably expected to tell the girl, it was a true
threat.

Teaching speech
Rice- hitman book. TEST: mere abstract teaching is advocacy (governed by
Brandenburg). Mere teaching speech (not abstract) is governed by a reasonable person
negligence standard

Stuart v McCoy- treats this as advocacy- there was no intent, immediacy, or clear and
present danger.

Fighting Words
Must be 1-1
Must be physically proximate
Must constitute the 1st blow in a fight

Cohen v California-established there is no such thing as captive audience outside the

home. Also, govt cannot decide a word is impermissible in general in public discourse.
Also form and content are treated the same way. One man’s vulgarity is another man’s
lyric.

Gooding v Wilson- guy arrested for telling policeman he would kill him- not fighting
words bc there would not have been a true fight (guy was a policeman! Had a gun!)

Rosenfeld- same situation except audience was kids- nobody is gonna fight the kids

Lewis- same as above- mother to policeman- policeman not gonna fight the mom!

Brown- not fighting words bc guy spoken to was a cop AND there was no 1-1
confrontation.

Overbreadth
Usually can only challenge statutes as applied, but in 1st amend can challenge on their
face. If a statute limits speech, a substantial portion is protected, it is overbroad and
unconstitutional.

Limitations to this doctrine-

Broderick- overbreadth must be real and substantial as judged in its legitimate
sweep

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 Rocket v Spokane Arcades- if P is engaged in constitutionally protected speech
covered by statute, can only raise as applied challenge. BUT if P is engaged in
unconstitutional speech, he can raise a facial challenge.

Osborne v Ohio-court can narrow the statute to the point where it is

unconstitutional ONLY if: 1) def was on notice that the limitation was part of the
statute, and 2) the jury convicting him was instructed based on the narrowed
statute.

Vagueness
Almost always raised in conjunction w/ overbreadth
Requires statute be defined w/ such clarity that a reasonable person can understand what
is prohibited and define it in a manner that limits arbitrary and discriminatory
enforcement (gives def notice and limits discretion of cops)

Content and Viewpoint regulation

Can never regulate viewpoint
Can only regulate content if:
1) the content is outside the protection of the 1st amend already
2) speech is a subset of an unprotected category of speech which represents an
especially egregious example of the unprotected category (ex. threatening to
kill president has especially egregious consequences than just threatening to
kill just anyone)
3) secondary effects are distinctive from other types of speech (ex. zoning of
adult theaters)
4) blue eyed actress- where there is no real threat of official suppression of ideas,
the govt may regulate the speech

Hate speech
Wisconsin v Mitchell- hate crime enhancement is ok! The enhancement is for the
MOTIVE not the intent. 1st amend does not come into play at all.

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