Constitutional Law II Outline (Barron)

Lauren Peacock
I. SUBSTANTIVE LIMITS ON GOVERNMENTAL POER (C!APTER ")
A. T!E ORIGINAL CONSTITUTION
i. Natural Ri#$ts P$iloso%$&
'. (e)laration o* In+e%en+en)e,-a self-evident truth that all men are
created equal and entitled to inalienable right to life, liberty, and the pursuit
of happiness IS natural rights philosophy
.. Limits on the claims government can make on the individual beyond anything
in human created constitutions or la!s b"c natural to all persons
/. #atural la! used to overturn state la! $alder v %ull &'()*+,invalidating a
$onn e- post facto civil la!, even though $onstitution only specifically
referenced criminal e- post facto la!s, based on the natural la!
a. Rationale. / $hase says there are acts !hich the 0ederal, or State,
Legislature cannot do, !ithout e-ceeding their authority 1here are
certain vital principles in our free republican governments, !hich !ill
determine and overrule an apparent and flagrant abuse of legislative
po!er
0. (issent1 / Iredell doesn2t think courts have the authority to set aside
la!s against natural la! unless e-plicitly unconstitutional
). $o won2
i. / $hase !on b"c use natural rights philosophy to define
liberty
ii. / Iredell !on b"c look to the language of the $onstitution to
determine !hether or not something is $onstitutional
ii. E3%ress Ri#$ts
'. 3rticle I, 4 ). prohibits suspension of habeas corpus e-cep in cases of
rebellion or invasion
.. 3rticle I, 4'5. prohibits state la!s that impair 6s
/. 3rticle I, 44 ) and '5. prohibit either state or federal government from
passing bills of attainder or e- post facto la!s
4. 3rticle III, 47 guarantees trail by 8ury in criminal cases e-cept impeachment
". 3rticle III, 49. requirements for conviction of treason
5. 3rticle I:, 47. guarantees citi;ens of each state priv < imm of the citi;ens of
the several states
6. 3rticle :I, 49. no religious tests for voting
7. Limited =overnment achieved through enumerated po!ers
iii. (o)trine o* Veste+ Ri#$ts
'. Root1 $ontract $lause &3rticle I, 4'5+
.. Main Use1 to protect economic property interests against state legislative
intrusion
/. Invalidated =3 state la! under the 6 clause &3rt I, 4'5+ of the $onstitution
0letcher v Peck &'*'5+ >s good faith purchasers of land from private
companies &that got land grant after bribes of =3 legislature+ could enforce
original la! and subsequent la! rescinding the land grant !as void
4. Important &state+ police po!er can trump 6 clause freedom to 6 $harles
?iver %ridge v @arren %ridge &'*9(+
'
B. T!E BILL O8 RIG!TS (RATI8IE( '.9'"9:')
i. Not ori#inall& in)lu+e+ in Constitution b"c gov2t of enumerated po!ers &!ouldn2t
have the po!er to limit speech and if say cannot then 0ramers !ere afraid that !ould
imply gov2t could encroach on other rights not enumerated in the %ill of ?ights+
'. Rationale o* :
t$
A;en+;ent1 the enumeration in the $onstitution of certain
rights shall not be construed to deny or disparage others retained
ii. (i+ not a%%l& to t$e States until a*ter Ci<il ar A;en+;ents
'. 1he A
th
3mendment applies to the po!er of the federal government and #B1
to the states %arron v Cayor < $ity $ouncil of %altimore &'*99+
A. ?ationale &/ Carshall+
i. $onstitution made for DS government, not for individual
states, therefore the limitations on po!er only apply to the DS
government &can only limit !hat it created not something
already in creation+E
ii. PLDS purpose of the %ill of ?ights !as to secure people from
abuse of po!er of central gov2t &not local gov2t+
B. 1e-tually could have argued applied to the states b"c didn2t mention
DS but not interpreted that !ay
C. (UE PROCESS AN( SUBSTANTIVE RIG!TS
i. Ori#ins o* (ue Pro)ess,intended to provide substantive or 8ust procedural
limitations on gov2tF
'. Pro)e+ural (ue Pro)ess,historical meaning of due process, right to
hearing"trial"process
.. Su0stanti<e (ue Pro)ess,substantive rights not te-tually in $onstitution but
interpreted into the $onstitution, e- right to privacy
II. #G Supreme court grounds substantive restraint on legislative po!er in due process
guarantee @ynehamer v People &#G '*AH+,found that forbidding the sale and
storage of liquor deprived right of property
'. Iissent argues that the democratic process of electing legislatures is due
process,if ma8ority of legislature in democracy enacted them
(. T!E CIVIL AR AMEN(MENTS (SPECI8ICALL= APPL= TO T!E STATES 9 ENABLING
PROVISIONS)
i. '/
t$
A;en+;ent,abolishing slavery, 47 gave $ongress po!er to enforce !ith
appropriate legislation
ii. '4
t$
A;en+;ent,citi;enship
'. Scott v Sanford &A
th
3mendment Iue Process pg 9*J+
A. Ired Scott !as a slave taken into free territoryE Scott sued for his
freedomE cannot sue b"c not a citi;en of the DS Substantive due
process of the right to property,$ongress could not restrict slavery
&transfer of property+
i. 'J
th
3mendment overruled that decision
.. A0olitionist %ers%e)ti<e,natural rights of men indispensable to liberty
/. Ori#inal Intent,author of the 'J
th
said intended to incorporate the '
st
*
amendments of the $onstitution
4. Mars$al9Brennan inter%retation o* '4
t$
,so vague capable of being
interpreted by each generation
iii. '"
t$
A;en+;ent,right to vote
7
E. PRIVILEGES > IMMUNITIES (O8 '4
T!
AMEN(MENT)
i. No teet$ to t$e Pri<ile#es > I;;unities Clause,purpose of clause !as race
discrimination and 8ust means that a citi;en may become a citi;en of 3#G state !ith
the rights and immunities of any other citi;en of the same state Slaughter-Kouse
$ases &'*(9+
'. Privileges and immunities are secured in relationship to the 0LIL?3L
government &as federal citi;ens+E
.. #arro! list of rights of federal citi;enship included right to.
A. to petition $ongressE
B. to peaceably assembleE
C. to use the !rite of habeas corpusE
(. to use navigable !aters of the DSE
E. the right to interstate travelE
8. to claim the rights secured by the '9
th
and 'A
th
amendmentsE
G. the right to vote in federal elections
/. / Ciller &ma8ority+,saying due process if procedural &and not substantive+
b"c nothing can impede state from regulating commerce
A. Incorrect cite
4. / 0ield &dissent+,court2s interpretation of the priv < immunities clause give
clause #B meaning Shouldn2t have to be a citi;en of the state to get the
privileges and immunities,that !as the !hole purpose of the clause
". / %radley &dissent+,choice of employment is libertyM!ithout !hich he
cannot be a freeman &emergence of substantive due process+ Property right in
a 8ob
5. NN#o $onstitutional basis for protection of fundamental rightsNN
ii. Re)ent Re<i<al
'. States cannot make distinctions bet!een people !ho are citi;ens of the Dnited
States Saen; v ?oe &')))+,$3 enacted a la! that if came to $3 to become
a !elfare recipient !ould get same benefit in first year from former state,
held unconstitutional
A. %D1 bona fide classifications are a-okay,State can impose some
residence restrictions to make sure a traveler is a bona fide resident
&e-ample, need to be a ' year resident before getting in state tuition+
.. (is)ri;ination a#ainst t$e newl& arri<e+ )iti?en 0ase+ on t$e e3er)ise o*
t$e ri#$t to tra<el, even if only and incidental burden, is su0@e)t to stri)t
s)rutin&
9
8. T!E EA POST 8ACTO CLAUSE (RETROACTIVE PUNIS!MENT B= GOVBTS)
i. Art. IC D:C )l. /,#oMe- post facto la! shall be passed &federal gov2t+
ii. Art. IC D'EC )l.',no State shall pass any e- post facto la!
III. S;it$ <. (oe (.EE/),3laska2s Ceghan2s La! imposing retroactive registration
and community notification convicted se- offenders against children establishment of
a civil non-punitive regulatory regime IBLS #B1 violate the e- post facto clause
'. If legislature intended to punish, GLS e- post facto
.. If legislature did not intend to punish, but the statute is so punitive either in
purpose or effect to negate the legislature2s intent to deem the la! civil, then
GLS e- post facto &?equires only the clearest proof+
/. 8a)tors (not e3$austi<e) to +eter;ine w$et$er or not %uniti<e1
A. traditionally regarded as punishmentE
B. imposes an affirmative disability or restraintE
C. promotes traditional aims of punishmentE
(. has a rational connection to a non-punitive purposeE
E. e-cessive !ith respect to purpose
4. Iissent &Stevens+,reasoned that any regulation that is imposed on every
specific criminal and no one else deprives an individual of a liberty interest
!hich O punishment and therefore violates e- post facto
". Iissent &=insburg+,punitive in effect 3#I act2s e-cessiveness &of the
burden+ in relation to its non-punitive purpose
G. T!E INCORPORATION (EBATE
i. NO total in)or%oration,the court has re8ected the argument that the Iue Process
$lause incorporates all of the %ill of ?ights vis-a-vis the states
ii. 8le3i0le (ue Pro)ess,asks !hether a proceeding !as so unfair as to offend
fundamental standards of decency, if yes, then apply %ill of ?ights to the States
'. Iouble 8eopardy in A
th
not applicable"incorporated to states Palko v
$onnecticut &')9(+,first time convicted and sentenced to life imprisonmentE
second time convicted and sentenced to death &b"c both state and convicted
can appeal+
A. ?ationale. Iouble 8eopardy does not offend -t$e )on)e%t o* or+ere+
li0ert&F
0. O<erturne+ 0& %enton v CI, states bound by double 8eopardy clause
,but concept of B?IL?LI LI%L?1G lives on
iii. Sele)ti<e In)or%oration
'. Silence of accused $3# be used against them b"c the freedom against self
incrimination is not incorporated 3damson v $alifornia &')J(+, for the
principles of incorporation
A. 0rankfurter &concurring+E
i. Iue Process $lause has an independent potency and meaning
apart from the %ill of ?ights &stands alone+E
ii. #ot to be governed by the straight 8acket of the %ill of
?ightsE
iii. Iynamic concept of due process so liberty may protect more at
a later timeE
i<. &00+ $onsensus theory of incorporation,look to see if most
states have incorporated the rule
J
<. %D1 any test that limits states po!er"independence must be
used !ith restraint
B. %lack &dissenting+E
i. there are cannons of fairness and decency governed by natural
la! &%ill of ?ights is 8ust natural la! enumerated+E
ii. use of 8udicial revie! to set aside state la! should be used
rarely
iii. to incorporate the %ill of ?ights !ould provide more solid
&formalist+ interpretation of $onstitution for certaintyE
i<. liberty is too big and fu;;y of a concept so must use %ill of
?ights to give liberty meaning &or 8udiciary could knock do!n
any statute offending liberty+
C. Curphy &dissenting+E
i. Ges, incorporate all of the %ill of ?ights
ii. %D1 leave the door open for liberty in the 'J
th
to have its o!n
rights meaning as !ell
(. Bverruled by =riffin v $3,state prosecutors cannot make adverse
inferences from accused silence
.. Incorporates '
st
3mendment =itlo! v #e! Gork &')7A+
/. Incorporates e-clusionary rule for illegal searches and sei;ures Capp v Bhio
&Dses 002s consensus theory of selective incorporation+
4. Pro<isions not in)or%orate+,(
th
3mendment right to 8ury trial in civil cases,
the right to grand 8ury indictment, freedom from e-cessive bail, '7 person 8ury,
and unanimous verdict for conviction
II. SUBSTANTIVE (UE PROCESS (C!APTER 5)
A. ECONOMIC SUBSTANTIVE (UE PROCESS
I. Dpheld a state statue limiting the rates charged by grain !arehouses Cunn v Illinois
&'*((+
'. %ut limited to police po!er to regulate private property that affects a public
interest,private property clothed !ith a public interest !hen used in a
manner to make it of public consequence, and affect the community at large
.. (i)tu;,Dndoubtedly, in mere private contracts, relating to matters in
!hich the public has no interest, !hat is reasonable must be ascertained
8udicially %ut this is because the legislature has no control over such a
contract
II. Prohibiting a person from making a 6 !ith an out of state co violated individual2s
ri#$t to G under the 'J
th
due process clause 3llgeyer v Louisiana &'*)(+
Invalidated state statute makes it illegal for any person to 6 !ith an insurance co not
licensed to do business in L3
'. Li0ert& in t$e '4
t$
A;en+;ent H free from physical restraint %D1 3LSB to
li<e an+ worI w$ere $e willE to earn $is li<eli$oo+ 0& an& law*ul )allin#E
to %urse an& li<eli$oo+ or <o)ation, and *or t$at %ur%ose to enter into all
)ontra)ts w$i)$ ;a& 0e %ro%er, necessary and essential to his carrying out to
a successful conclusion the purposes above mentioned
A
III. 0reedom of 6 is part of the liberty protected in the 'J
th
Lochner v #e! Gork &')5A+
Invalidating a state la! setting the ma-imum hours of employment for bakery
employees b"c unreasonably interfered !ith the right to 6 bet!een employer and
employee
'. #ot police po!er b"c clean and !holesome bread does not depend on ho!
long the baker !orks
.. (issent (J. !ol;es),3 constitution is not intended to embody a particular
economic theoryE cannot invalidate regulation unless unreasona0l& interferes
!ith fundamental rights
A. very anti-research
i<. E)ono;i) Su0stanti<e (ue Pro)ess Un+er Lo)$ner
'. Set aside state &$oppage v 6ansas, ')'A+ and federal &3dair v Dnited States,
')5*+ statutes making it criminal to fire employee for membership in a labor
union
A. Lmployer and employee have an equality of right
0. J. !ol;es +issent,the la! simply prohibits the more po!erful party
to e-act certain undertakings, or to threaten dismissal or un8ustly
discriminate on certain grounds against those already employed
.. Invalidated a I$ minimum !age la! for !omen 3dkins v $hildren2s
Kospital &')79+
/. Dpheld ma-imum hour la! for !omen Culler v Bregon &')5*+
A. %randeis %rief,!" social statistics on harm of e-cessive hours to
!omen
4. Dpheld la! setting '5 hour male !ork day for male !orkers %unting v
Bregon &')'(+
". =enerally !age setting more likely to be struck do!n and hours setting less
likely to be struck do!n
B. T!E 8ALL O8 SUBSTANTIVE (UE PROCESS
i. New (eal le#islation in t$e ':/Es,more support for upholding la!s regulating
commerce and right to 6 &less likely to see businesses as 6s bet!een individuals+
ii. T$e (eat$ o* )o;;er)ial su0stanti<e +ue %ro)ess,a state can adopt !hatever
economic policy may be reasonably necessary to promote public !elfare #ebbia v
#e! Gork &')9J+ La! regulating state milk prices rationale under the e-ercise of the
police po!er
'. (e*erential re<iew o* t$e state le#islature,rationality for the legislature and
not for the courts
.. PtQhe guaranty of due processM+e;an+s onl& t$at t$e law s$all not 0e
unreasona0leC ar0itrar& or )a%ri)ious, and that t$e ;eans sele)te+ s$all
$a<e a real an+ su0stantial relation to t$e o0@e)t sou#$t to 0e attaine+
/. Iistinguishes Lochner &not o<errule++ b"c business affected !ith a public
interest
A. $an still make a narro! argument for business #B1 affected !" a
public interest &but !ill lose+
iii. Constitution +oes not s%eaI o* *ree+o; to G,liberty is sub8ect to due process and
regulations !hich are reasonable in relation to their sub8ect and adopted in the
interests of the community IS due process @est $oast Kotel $o v Parrish &')9(+
Sustained a minimum !age la! for !omen &overruling 3dkins+
H
IV. Cunn v Illinois &'*((+,legislature allo!ed to regulate grain storage facility rates b"c
are businesses affected !ith a public interest
V. Keld constitutional clause that forbade discrimination against nonunion employees
Lincoln 0ederal Labor Dnion v #orth!estern Iron < Cetal $o &')J)+
VI. Dp to the legislatures to decide the !isdom of legislation,upheld unla!ful to engage
in debt-ad8usting unless member of 6S bar 0erguson v Skrupa &')H9+
<ii. Si#ns o* Resurre)tion
'. Some takings cases revival of substantive economic due processNN
<iii. Current Stan+ar+ H rationalit& test
'. 1he burden is on the challenging party to establish that the la! has no rational
relation to a permissible gov2t purpose &Dnited States v $arolene Products,
')9*+
.. 1he court !ill not R the legislative fact finding
i3. Puniti<e (a;a#es )an 0e e3)essi<e an+ <iolate (ue Pro)ess.
'. In determining !hether a punitive damage a!ard is grossly disproportionate to
actual damages, the court !ill consider three factors &%C: v =ore+
A. the degree of reprehensibility of of the >2s conductE
B. the disparity bet!een the actual or potential harm suffered by the S
and the punitive a!ardE
C. the difference bet!een the punitive damages a!arded by the 8ury and
the civil penalties authori;ed or imposed in comparable cases
.. 1he Iue Process clause prohibits imposition of grossly e-cessive or arbitrary
punishments on a tortfeasor &used %C: standards+ State 0arm Cutual
3utomobile Insurance $o v $ampbell &7559+
A. NNpunitive damages should be !"in single digit ratio &) to ' at most+NN
0. %ro)e+ural ele;ent,8ury punished state farm for people not before
the court &no procedure hearing for them+ 3#I
). su0stanti<e ele;ent,amount is arbitrary
C. 8UN(AMENTAL RIG!TS &strict scrutiny SB? for fundamental rights O the government must
sho! that the legislation is narro!ly tailored or necessary to further a compelling state
interest+
i. Contra)e%tion
'. Privacy right implied from the penumbras of the '
st
, 9
rd
, J
th
, A
th
, and )
th

3mendments =ris!old v $onnecticut &')HA+ &Iouglas+ State criminal
statute proscribing use of contraceptives even by married persons violates the
right of privacy
a. %nu;0ra H surrounding or ad8oining region in !hich something e-ists
in a lesser degree
0. /
r+
A;en+;ent,privacy !as important to the framers
). '
st
A;en+;ent,freedom to attain kno!ledge &right to study a
language+
i. Ceyer v #%, right of parent to rear child to study =erman in a
private school
ii. #33$P v %utton, right of association
+. :
t$
A;en+;ent,sho!s rights in %ill of ?ights no only ones
E. 3ll $onst provisions together create KONE O8 PRIVAC=
*. SOR un)lear,concurring members applied either strict scrutiny or
particularly careful scrutiny but CB?L than rational basis revie!
(
G. $oncurrence &Karlan+
i. privacy right implicit in or+ere+ li0ert&E
ii. focus on history in order to create 8udicial self restrainE
iii. %ill of ?ights does not define #B? limit due process definition
of the 'J
th
&IG#3CI$+
!. $oncurrence &=oldberg+
i. emanating from the traditions and collective consciences of
our people < )
th
3mendment focus for un-enumerated rights
Liberty protects fundamental rights not only limited to ' thru *
amendments &sho!s intent of framers to include non-
enumerated rights+E
ii. J
th
< A
th
together O the right to be let alone &Blmstead v DS+E
iii. looks to the collective conscience of our people to determine if
there is a right &$as %re<aile++E
i<. critiques dissent for saying it !ould be okay to have mandatory
sterili;ation b"c not specifically in $onstitution
I. $oncurrence &@hite+
i. realm of family life gov2t can2t enter, right s of the marriage
relationshipE
ii. uses strict scrutiny
J. Iissent &%lack+
i. not in the $onstitutionE
ii. court should not act like a $onstitutional $onventionE
iii. purpose of )
th
3mendment !as to limit the po!er of the federal
gov2t &not to invalidate state la!+E
i<. dilutes $onstitution b"c privacy is such a broad concept
G. Iissent &Ste!art+,finds no right to privacy in the $onstitution even
though he thinks the la! is stupid, not for him to interpose his personal
vie!s
l. O<erallC stress on t$e inti;ate relations$i% o* $us0an+ an+ wi*e (in
*a;il&) in so)iet&
.. ?ight of individual to be free from e-cessive governmental intrusion in the
decision to have or not have a child Lisenstadt v %aird &')(7+ statute
prohibiting distribution of contraceptives to unmarried persons violates Lqual
Protection > arrested after giving a lecture to students and passing out
contraceptives
a. '
st
Cir. $el+,fundamental human right to contraceptives &to decide
!hen to procreate+ %D1 Supreme found on Lqual Protection grounds
0. O*ten Luote+ (i)ta on su0stanti<e %ri<a)& ri#$t1 If the right of
privacy means anything, it is the right of the individual, married or
single, to be free from un!arranted governmental intrusion into
matters so fundamentally affecting a person as the decision !hether to
bear or beget a child
C. L3$K part of the couple has some -+e)isionalF privacy
*
/. 1he $onstitutional right to privacy e-tends to an individual2s liberty to make
choices regarding contraception $arey v Population Services Int2l &')((+
A. J 8ustices agreed that right to distribute contraceptives e-tended to
minors
4. Privacy right e-tended to overturn conviction for possession of obscene
materials in one2s o!n home Stanley v =eorgia &')H)+
A. 0ocus on the home as a the critical locus of privacy, 3#I
B. the right to be let alone
ii. A0ortion
'. 3 !oman2s fundamental right to abortion e-ists !"in the 'J
th
3mendment
definition of liberty &privacy+ %D1 it is not absolute and may be regulated by
the State after the '
st
trimester ?oe v @ade &')(9+
A. Ca8ority &%lackmun+
i. ?ight to abortion e-ists %D1 is not absolute &must be
considered against state interests+
'. Creates tri;ester s)$e;e
a '
st
Tno State regulationE
b 7
nd
,State may regulate to protect maternal
healthE
c 9
rd
&after viability+,State may proscribe
abortion e-cept !here it is necessary to preserve
the life or health of the mother
ii. Lots of history in the opinion &historical reasons for making
abortion criminal no longer apply+
'. :ictorian social concern to discourage illicit se-ual
conduct &no furthered by 1U+E
.. Cedical procedure ha;ardous for !omen &no longer
dangerous, less dangerous than childbirth+E
/. State2s interest in protecting prenatal life
iii. Ri#$t o* %ersonal PRIVAC= )o;es *ro;M
'. 'J
th
3mendment2s liberty
B. $oncurrence &Iouglas+
i. =rounds protection in the :
t$
A;en+;ent,
'. freedom of choice in the basic decisions of one2s life
respecting marriage, divorce, procreation, contraception
and the education and upbringing of children 3LL
fundamental rights !"in )
th
3mendment &sub8ect to strict
scrutiny+
.. 8ree+o; to )are *or oneBs $ealt$ an+ %ersonC
*ree+o; *ro; 0o+il& restraint or )o;%ulsionC
*ree+o; to walIC strollC or loa* &also fundamental
rights sub8ect to strict scrutiny+
/. T$e *ree+o; o* a wo;an to +e)i+e w$et$er or not to
$a<e a )$il+ is )learl& a *un+a;ental ri#$t &no-
brainer for Iouglas+
a cites real effects of childbirth on mother
)
C. $oncurrence &Ste!art+
i. admits the revival of su0stanti<e +ue %ro)ess,must admit
that the court is giving and independent meaning to the term
liberty in the 'J
th
3mendment Iue Process $lause &uses
pre-0erguson v Skrupa &death of substantive due process+ cases
to support right++
ii. right granted in =ris!old and Lisenstadt necessarily includes
the right of a !oman to decide !hether or not to terminate her
pregnancyE
iii. NNdissented in =ris!old b"c believed substantive due process
!as over %D1 not that it is revived then concurs
(. Iissent &@hite+
i. no $onstitutional basis for the right &for the legislatures+E
ii. NNnote,concurred in =ris!old,b"c there a history of marital
privacy protected by past court decisions and history generallyE
iii. 3#I b"c of that the compelling gov2t interest in =ris!old !as
small !here here it is large
E. Iissent &?ehnquist+
i. uses rational relation SORE
ii. historical argument,right completely unkno!n to the framers
< states don2t agree &consensus theory of due process+E
iii. &esC a0ortion is -li0ert& interestF 0ut onl& ;eans no
+e%ri<ation -wit$out +ue %ro)ess o* lawF 3#I all that
requires is rational basis revie!E
i<. not about fundamental privacy concern b"c operating table
and doctor
.. Kealth includes physical, emotional, psychological, familial, age, 3LL factors
Ioe v %olton &')(9+ &to be read !" ?oe b"c handed do!n on the sa;e +a&+
a. Stru)I +own / %ro)e+ural reLBts
i. only hospitals accredited hospitals,struck do!nE
ii. approval by hospital staff committee,struck do!nE
iii. req2t that performing physicians 8udgment be affirmed by 7
other licensed physicians,struck do!n
/. 0rom ?oe to $asey Pthe in-bet!een yearsQ Pdid not read but mentioned a fe!
of the cases in classQ
A. Cany legislatures enacted la!s to curtail"challenge ?oe
B. ?eaffirmed ?oe and struck do!n A provisions of a local ordinance
regulating abortion including parental consent"notification, req2d
hospitals, req2d informed consent, and req2d 7J hour !aiting period
$ity of 3kron v 3kron $enter for ?eproductive Kealth &')*9+
C. $ourt upheld significant restrictions on abortion &!ith foreshado!ing
of possibly overruling ?oe+ @ebster v ?eproductive Keath Services
&')*)+
'5
4. Planned Parenthood v $asey &'))7+ &plurality opinion+
A. Ca8ority &B2$onner !" 6ennedy < Souter+
i. U%$ol+s t$e -essen)eF o* Roe1 o;an ;aintains t$e ri#$t
to )$oose to $a<e an a0ortion %rior to <ia0ilit& wit$out an
-un+ue 0ur+en.F &as a li0ert& interest or component of
liberty+
'. #e! test,un+ue 0ur+en anal&sis &only J 8ustices use
it+ &but B2$onner says simply making it more e-pensive
to procure an abortion is not enough to invalidate it+E
must be a substantial obstacle
ii. ?easons for upholding ?oe &comparison to other precedents
that have been overruled+
'. viability is still a !orkable frame!orkE
.. reliance factor &!omen2s realities+E
/. there has been no significant evolution of legal
principles making ?oe2s doctrinal footing !eaker &and
more social acceptance no! than before+
a different from %ro!n < @est $oast Kotel
iii. %D1 re%u+iates t$e tri;ester s)$e;e
i<. 3#I state $as a LEGITIMATE INTEREST in $ealt$ o*
wo;an an+ ri#$ts o* t$e *etus
<. 3#I upholds the follo!ing regulations &0ut t$is was a *a)ial
)$allen#e < the undue burden test did not e-ist so no evidence
in record on !hether these regs posed undue burdens+
'. informed consent,okayE
.. 7J hour !aiting period,okayE
/. minor consent or 8udicial override,okayE
4. must be a dr to give informed consent < record keeping
req2ds,okay
<i. ONL= re#ulation stru)I +own is $us0an+ %er;ission
state;ent,stru)I +own
'. !ill impose a substantial obstacle for many !omen
&spousal abuse+
<ii. #B discussion of privacy,no strict scrutiny SB?
B. Stevens &concurring and dissenting in part+
i. uses un+ue 0ur+ens anal&sis BUT to striIe +own all
%ro<isions o* t$e lawE
ii. !eighs state2s interest &must be secular to be legitimate,
protecting potential human life+ vs !omen2s interest &bodily
integrity,a right to control one2s person+ and !omen2s
interests trump states
iii. ?estrictions on abortion right here are undue burdens b"c !ould
interfere !" !oman2s choice and her choice is a personal liberty
&constitutional value+
''
C. %lackmun &concurring and dissenting in part+
i. SOR H stri)t s)rutin& &!rote ?oe+ 09) ri#$t to %ri<a)& is a
*un+a;ental ri#$tE
ii. points out facial challenge so there is no evidence of !hether
the regs impose an undue burden,to leave door open for
future challengesE
(. ?ehnquist &!" @hite, Scalia, < 1homas+
i. !ould have struck do!n ?oe all together b"c the ma8ority is not
follo!ing ?oe but creating a ne! precedent !ithout e-plicitly
overturning ?oe &not follo!ing stare decisis any!ayM+E
ii. ter;ination o* %re#nan)& is not a *un+a;ental ri#$t &court
reached too far+E
iii. %D1 still abortion O liberty interest !hich provides only
rational 0asis re<iewE
i<. 3#I !ould have validated 3LL of the provisions by rational
basis revie!E
<. critiques the undue burdens test as an un!orkable standardE
E. Scalia &!" ?ehnquist, @hite < 1homas+ &concurring in part and
dissenting in part+
i. termination of pregnancy is #B1 a liberty protected by the
$onstitution
'. b"c not an enumerated right in the $onstitutionE
.. 3#I history of 3merican society legally proscribed it
&liberty includes only those practices, defined at the
most specific level, that !ere protected against
government interference by other rules of la! !hen the
'J
th
3mendment !as ratified+
ii. states may allo! abortion but it is not a $onstitutional right
". Invalidated statute prohibiting partial-birth abortions at any stage of
pregnancy under the undue burden analysis Stenberg v $arhart &%reyer+
&7555+
A. Ca8ority
i. statute so broad !ould effect I<U &!hat is termed partial
birth+ and I<L &)AV of all abortions in us+ abortions,s!eeps
over a broad category of abortion proceduresE
ii. statute did not provide for mother2s health adequately &b"c
sometimes I<U is the safest procedure for the mother+E
iii. use UN(UE BUR(EN stan+ar+
B. Iissenters &?ehnquist, 1homas, 6ennedy+
i. 6ennedy 8oined the dissenters &not an undue burden+E
ii. stressed states should be able to promote respect for life and
moral difference posed by partial-birth abortionsE
iii. questioned !hether health e-ception had to account for a
marginally safer procedure
'7
iii. Marital an+ 8a;il& Ri#$ts
'. =eneral Kistory &Ri#$t to Raise C$il+ren > Marr&+
A. State statue prohibiting instruction in certain foreign languages in
private schools materially interferes !ith the po!er of parents to
control the education of their o!n Ceyer v #ebraska
B. State la! requiring parents to send children to public schools !ould
unreasonably interfere !" the liberty of parents < guardians to direct
upbringing < education of children Piece v Society of Sisters
C. State miscegenation la! violated Lqual Protection 3#I due process,
referred to freedom to marry as one of the vital personal rights
essential to the orderly pursuit of happiness Loving v :irginia
.. 0amily living arrangements &beyond nuclear family,to e-tended family+ are
one of the liberties granted in Iue Process Coore v Last $leveland &')((+
Striking do!n a housing ordinance that limits occupancy of a d!elling to
members of a single family !" a specific definition,criminal offense
=randmother convicted for taking of grandson after mother2s death
A. Ca8ority &Po!ell !" %rennan, Carshal < %lackmun+ &plurality+.
i. SOR ;ore t$an rational 0asis,)are*ul s)rutin& &strict
scrutinyF+
'. gov2t interest,overcro!ding, minimi;ing traffic <
parking congestion, and undue burden on school system
a gov2t claims only constitutional rights to nuclear
familyE
b %ut $BD?1 disagrees and states tradition of
uncles, aunts, cousins, and especially
grandparents sharing a household has roots
equally deserving of $onstitutional protection
.. individual interest,to take care of family, determine
familial living arrangements
ii. !hile substantive Iue Process is dangerous &b"c can be abused+
cannot fail to use it !hen it protects traditional family values
B. $oncurrence in /udgment &Stevens+
i. finds that the city2s ordinance is a taking of property !"out due
process or 8ust compensation &different due process theory+
C. Iissent &%urger+ &did not reach $onstitutional claim+
(. Iissent &Ste!ard !" ?ehnquist+
i. to be a substantive due process right must be i;%li)it in
or+ere+ li0ert& &implies tradition+ 3#I grandma2s right to live
!" grandson does not fall into that categoryE
ii. 3#I to e-pand substantive Iue Process to this type of family
arrangement &as opposed to right to marry or raise children+
renders Iue Process $lause meaningless
E. Iissent &@hite+
i. yes, there is a li0ert& interest here %D1 rational basis
&deferential+ standard of revie!,!ould uphold ordinance
'9
/. 0amily living arrangements may be limited to family meaning all
blood"marriage"adoption relatives :illage of %elle 1erre v %oraas &')(J+
Dpheld local ordinance that defined single family as not more than t!o
unrelated persons
a. SOR H rational 0asis
B. Iissent &Carshal+,choice of household companions involves deeply
personal considerations as to the kind and quality of intimate
relationships !"in the home 1hat decision surely falls !ithin the
ambit of the right to privacy protected by the $onstitution
4. 1he broad statute !as unconstitutional as applied b"c it violated the
fundamental right of parents to make decisions concerning the care, custody,
and control of their children 1ro-el v =ranville &7555+ &J plurality+ 0ound
@ashington State statute that let anyone petition for custody facially
unconstitutional &$ourt gave more visitations to grandparents than mother
!anted 3#I did not give any !eight to the traditional presumption that a fit
parent !ill act !"in the child2s best interests 3#I parent did not cut of right to
see grandparents entirely+ NN<er& *a)t s%e)i*i) )aseNN
A. 1!o concurring 8ustices accepted that a parent has a fundamental right
to care, custody, and control of their children
i. 1homas,!ould apply strict scrutiny and call it a fundamental
rightE
ii. Souter,!ould have found it overbroad
B. Bnly Scalia re8ected the arg that parent has a special liberty right in the
care, custody, and control of their children,for legislature to decide
". %0 !ho also raised children &something more,lived together for '* years+
until mother died could not be irrefutably presumed unfit,there is a private
liberty interest to children on has sire+ an+ raise+ 3#I state can only break
that relationship sub8ect to strict scrutiny Stanley v Illinois &')(7+ &not in
reading but in notes 3#I in Cichael K+ La! that made children !ards of
the state if mother died !as held &irrebuttable presumption that un!ed father
unfit+ unconstitutional,violated procedural 3#I substantive due process,
A. procedural violation,b"c entire class presumed to be unfit and
presumption cannot be challengedE
i. procedural precedent. $leveland %oard of Ld v La0leur,
struck do!n presumption that after the A
th
month public school
teachers !ho !ere pregnant must go on unpaid maternity leave
B. substantive violation,privacy right in children one has raised and
sired
5. #o fundamental right of %0 !ho sires child through an adulterous affair and
only lives !ith the child for a very short !hile &small connection+ Cichael K
< :ictoria I < =erald I &')*)+ &NN0act specific areaNN+
a. 8a)tual Situation1 Cichael K is the %0 !ho had an affair !ith
$arole I !hile she !as married to =erald I %0-Cichael K !ants
custody of his child-:ictoria I %lood tests sho!ed paternity Iuring
first 9 years, child lived !ith mother !ho at times lived !ith %0 also
1hen after 9 years, %C reconciled !ith e--husband-=erald I and
'J
moved back in !ith him for last A years !" child Cichael-%0 filed
suit for visitation :ictoria-child &via =3L+ filed cross-complaint
asserting right to maintain relationship !" both Cichael 3#I =erald
0. Law at Issue1 =erald moved for summary 8udgment under $3 $ode
that provides that a child born to a married !oman living !" her
husband, !ho is neither impotent or sterile, is presumed to be the
father Presumption can only be rebutted by the husband or !ife in
limited circumstances Cichael claimed violation of sub < procedural
due process b"c he, %0, could not rebut the presumption 3#I
:ictoria2s =3L claimed violation of sub and proc due process b"c
child could not rebut presumption
C. Ca8ority &Scalia !" ?ehnquist, B2$onner, 6ennedy+ &plurality+
i. no su0stanti<e ri#$t *or B8 b"c fundamental rights must be
grounded in history and tradition,$ere t$ere is not $istori)al
ri#$t to $a<e )usto+& o* a )$il+ sire+ out o* we+lo)I &from
an adulterous union+
'. #ote,Scalia2s defines the unitary family as the
marital family or unmarried persons and their children if
living together
.. S)aliaBs )ra?& *ootnote !hich B#LG ?ehnquist 8oins
uses <er& narrow9stri)t inter%retation o*
*un+a;ental ri#$ts to include the most specific level
at !hich a relevant tradition protecting or denying
protection to the asserted right can be identified Kere,
there is no tradition of protection to natural fathers,a
tradition of protections to parents 8ust doesn2t cut it b"c
not narro! enough for 1ony NNand !here there is no
right it is for the state legislature to decideNN
ii. no %ro)e+ural <iolation *or B8 09) )on)lusi<e %resu;%tions
are not auto;ati)all& in<ali+,only invalid if the state2s
purpose in creating the presumption &that child born in !edlock
is from the marriage+ does not fit !ith the state2s policy goal &to
preserve integrity of the family unit+E
'. here since there is a fit there is not procedural due
process violation
iii. no substantive violation for child b"c no history of recogni;ing
multiple fatherhood
i<. no violation of equal protection b"c there is a rational reason
!hy child &or =3L+ cannot question paternity,stability of the
family"marriage &if the husband or !ife question it then the
stability of the marriage is already at issue+
(. B2$onner !" 6ennedy &concurring in part+
i. does not agree !" Scalia2s intense < narro! historical analysis
to be used !hen identifying liberty interests protected by the
Iue Process $lause
E. Stevens &concurring in 8udgment+
'A
i. woul+ not *ore)lose t$e %ossi0ilit& t$at a B8 woul+ $a<e a
)onstitutionall& %rote)te+ relations$i% wit$ )$il+ &but here
there !asn2t enough of a relationship developedE
ii. %D1 here Cichael !as heard by trial 8udge and trial 8udge
decided to place child !ith %C and husband &deference to trial
8udge+
8. %rennan !" Carshall < %lackman &dissenting+
i. Broa+er )on)e%tion o* *un+a;ental li0ert& interest,
!hether Cichael K has a natural right to his child as a parent
&then history looks different+E
ii. -li0ert&F s$oul+ not 0e li;ite+ 0& -tra+itionF and $a<enBt in
%re)e+ent &Lisenstadt, =ris!old, Stanley, etc,did not ask
!hether the specific liberty !as traditionally protected+E
iii. there are reasons traditions change,today have paternity tests
and questions to legitimacy can be proved
G. @hite !" %rennan &dissenting+
i. Mi)$ael !. as t$e B8 $as a li0ert& interest w$i)$ )annot 0e
+enie+ wit$out +ue %ro)ess o* law,liberty interest of a father
in relationship !ith his child
ii. ?ationale beyond ancient bastard la!s doesn2t !ork b"c !here
child seeks to establish paternity the sting of illegitimacy isn2t
there 3#I no! have blood tests
!. 3dding upM
i. A of the /ustices believe that conclusive presumptions have
procedural due process issuesE
ii. Bnly 7 rigidly define liberty on narro! traditionE
i<. !o;ose3ualit& an+ Li0ert&
'. $onsensual, homose-ual sodomy is not a fundamental right %o!ers v
Kard!ick &')*H+
A. Ca8ority &@hite+ &plurality+ > charged !" violating =3 statue
criminali;ing sodomy !" another male adult in o!n home >
challenged $onstitutionality of criminali;ing consensual, adult,
homose-ual sodomy
i. ?ight to privacy IBLS #B1 spill over to consensual,
homose-ual sodomy &the line of cases that confer right to raise
child, maintain family relationships, marriage, contraception, <
abortion and to bear or beget a child does e-tent to confer right
to engage in homose-ual sodomy+
'. homose-ual sodomy nothing to do !" family
.. no tradition of protection for homose-ual sodomy,
tradition of criminali;ation &ancient roots+
/. #B1 implicit in the concept of ordered liberty
ii. need great resistance to e-pansion of substantive due process to
prevent 8udiciary from making la!s &for legislature+
iii. #o protection 8ust b"c in o!n home,still can criminali;e
victimless crimes such as possession of illegal drugs
i<. ?ational basis of la! e-ists,rational for state to prescribe
conduct believed to be immoral and unacceptable
B. Po!ell &concurring+
'H
i. 3grees no fundamental right to consensual sodomyE
ii. %D1 may be cruel < unusual punishment under the *
th
to
imprison up to 75 years for a single, private, consensual act of
sodomy &comparable to =3 punishment for aggravated battery,
first degree arson < robbery+
C. %lackmun !" %rennan, Carshall, < Stevens &dissenting+
i. Precedent protects intimate personal choices central to personal
life and liberty,the fundamental interest all individuals have
in controlling the nature of their inti;ate asso)iations !"
othersE
ii. #otes la! criminali;es 3LL sodomy, so =3 cannot 8ustify la!
!ith the rational basis of proscribing homose-ual conductE
iii. Ri#$t to %ri<a)& w9in own $o;e,spatial privacy !"in o!n
home, right to be let alone Stanley v =eorgia,held that State
could not punish private possession of obscene material+E
i<. *
th
3mendment issue,cruel < unusual to punish individual for
!ho they 3?L &?obinson v $3, fn7, overturned conviction of
> due to status as narcotics addict+
'. %D1 a person may be convicted for being drunk in
public &see B2$onnor2s concurrence in La!rence+
(. Stevens !" %rennan < Carshall &dissenting+
i. Cay a State totally prohibit the conduct by a neutral la!F
&considering protection given by precedent to the marital
bedroom+
'. NO 09) essential -li0ert&F e3ists to en#a#e in nonO
re%ro+u)ti<eC se3ual )on+u)t ot$ers ;a& *in+
i;;oral &=ris!old, Lisenstadt, and $arey+,protects
sodomy bt!n married persons and unmarried
heterose-ual persons
ii. If no, may the State save the statue by announcing it !ill only
enforce la! only against homose-ualsF #B
'. Io the persons !hom =3 seek to apply statute
&homose-uals+ against have the same interest in libertyF
a Ges, every free citi;en has the same interest in
liberty
.. Is there are reason !hy the state may be permitted to
apply a generally applicable la! to only certain
personsF
a #B, b"c selective application must be supported
by a neutral and legitimate interest,more than
dislike for a disfavored group &1he =3
legislature has stated nothing about sodomy !"
regard to homose-uals specifically+
.. $annot outla! homose-ual sodomy b"c liberty interest in se-ual choice
La!rence v 1e-as &7559+
'(
A. Ca8ority &6ennedy+
i. ?oots the right in liberty &substantive due process+ rather than
Lqual Protection &same cases from %o!ers dissent+,the
liberty protected by the $onstitution allo!s persons the right
to engage in consensual intimate contact
'. ?ationale,b"c if based in Lqual Protection could create
a broad statute that !ould outla! 3LL sodomy @anted
to establish liberty in se-ual choice
ii. #o ancient roots in illegal homose-ual conduct, but sodomy
generally
iii. PLUS laws an+ tra+itions o* t$e ;ost re)ent %ast $al*
)entur& MOST rele<ant.
i<. #e! precedent,!eakens %o!ers
'. ?omer v Lvans &'))H+,case struck do!n class-based
legislation directed at homose-uals as a violation of
Lqual Protection
.. $asey
<. %road supportive language
<i. %o!ers is e-plicitly overruled &Stevens dissent should have
controlled+
<ii. States $3##B1 criminali;e private homose-ual conduct b"c
no legitimate state interest
B. B2$onner &concurring in 8udgment+
i. Ioes not 8oin overruling %o!ers
ii. Lqual Protection basis for right b"c only illegal if sodomy !"
same se-
iii. SOR,()lai;s) rational 0asis 0ut striIes +own t$e law
'. moral disapproval"bare desire to harm a group is not a
rational basis for the la!
i<. 1e-as argues that la! only discriminates against homose-ual
conduct and not homose-ual persons,%D1 since that conduct
is closely correlated !" being homose-ual 1U la! is targeted at
more than 8ust conduct but to!ard gay persons as a class
<. L-plicitly re@e)ts e3tension to #a& ;arria#e or t$e ;ilitar&
C. Scalia !" ?ehnquist, < 1homas &dissenting+
i. mad no stare decisis,liberty finds no refuge in a 8urisprudence
of doubt &$asey+E
ii. reasons to overrule precedent are as a follo!s and Scalia thinks
they do not apply here
'. foundations eroded by later decisionsE
a not eroded by $asey b"c before and if eroded by
?omer that is countered by @ashington v
=lucksberg !hich found fundamental rights are
deeply rooted in this #ation2s history < tradition
.. sub8ect to substantial and continuing criticismE
a compares to ?oe,more criticism
/. not induced individual or societal reliance
a disruption of the social order
'*
iii. attacks $asey < abortion
i<. no +enial o* eLual %rote)tion 09) it a%%lies to ;en an+
wo;en &even if only criminal !hen involved !ith same se-
partner+
(. 1homas &dissenting+
i. 8oins !" Scalia but makes sure to say la! is stupid
e. NN$ere is t$e law on $o;ose3ual se3ual )on+u)t2NN
i. doesn2t involve minors, coercion, prostitution, gay marriage, or
gays in the militaryE
ii. no legitimate interest in punishing homose-ual se- %D1 not
requirement to embrace gay marriage &li0ert& interest NOT
*un+a;ental ri#$t+
<. Ri#$t to -Personal Li*est&le C$oi)esF
'. Ioes not e-tend to police grooming regulations %D1 only infringements on
substantial claims of infringement on the individual2s freedom of choice !"
respect to certain basic matters as procreation, marriage, and family life
6elley v /ohnson &')(H+
<i. Ri#$t to Treat;ent an+ Prote)tion
'. Involuntary confinement of a patient !ho !as not dangerous to self or others
!"out providing any treatment violates the due process guarantee B2$onner
v Ionaldson &')(A+ &unanimous+
A. %urger2s concurrence,leery of conditioning confinement"deprivation
of liberty on treatment
.. Centally ill detained person has ') right to safe conditions < confinement
&personal security+ .) right to freedom from bodily restraint, < /) treatment
!hen the State institutionali;es an individual !ho is thereafter dependent on
the State b"c a duty to provide certain services &at the State2s discretion+ is
created Goungberg v ?omeo &')*7+
/. State is not constitutionally responsible for failing to affirmatively protect
private citi;ens from harm !hich arises from other sources,child placed in
custody of father by social services &after complaints < accusations for abuse+
< no cause of action e-isted b"c no right to be protected IeShaney v
@innebago $ty Iept of Social Services &')*)+
A. %rennan !" Carshal < %lackmun dissenting,by helping the child and
limiting help from other channels &cutting off private aid+, the State
puts itself in a position to have an affirmative duty to the child
4. Police officer does not violate substantive due process by causing death by a
high speed chase aimed at apprehending a suspected offender Sacramento v
Le!is &'))*+ &unanimous+
<ii. (ue Pro)ess Ri#$ts o* Aliens
')
'. Kolding an alien !"out bail does not violate A
th
3mendment due process
Iemore v Kyung /oon 6im &7559+
A. >-alien la!ful permanent resident detained under 4'77H, removable
from country b"c convicted of certain crimes #B1 entitled to !rit of
habeaus corpus
B. %"$
i. practically necessary to contain criminal activityE
ii. aliens do not have same rights as citi;ens (-Con#ress ;a&
;aIe rules as to aliens t$at woul+ 0e una))e%ta0le i*
a%%lie+ to )iti?ens.FE
iii. not e-cessively long period of detention &usually a month and a
half,H months here+
C. 6ennedy &concurring+,if there !as an unreasonable delay by I#S in
pursing the deportation proceedings, then it !ould be necessary to
inquire !hether the detention is not to facilitate deportation &!hat
6ennedy sees as the legitimate purpose behind the detention
requirement+E
(. Souter !" Stevens < =insberg &concurring < dissenting in part+,
concurred on federal 8urisdiction and dissented from $ourt2s
determination on the merits
i. constitutional protection stronger for la!fully admitted aliensE
ii. may be sub8ect to federal removal %D1 not !"out due process
,deserved individual bail hearing to determine if
'. flight risk or
.. dangerous to community
iii. questions data on failure to sho! up for deportation hearings
i<. 9 fatal fla!s to 4'77H
'. applies to everyone &no hearings+E
.. detention period is not limitedE
/. applies to all aliens as a class, not 8ust dangerous felons
E. %reyer &concurring < dissenting in part+,agreed if resident alien
concedes deportable then gov2t can contain !"out bail %D1 > did not
concede deportableE !ould remand to s
III. EPUAL PROTECTION
T&%e o* ELual Prote)tion T&%e o* Ri#$t Stan+ar+ o* Re<iew ConseLuen)es
1raditional Lqual Protection Lcon < Social
Legislation
?ational ?elation Ieferential
&usually validated+
#e! Lqual Protection 0undamental ?ights <
Suspect $lassification
Strict Scrutiny O
compelling
governmental interest
< narro!ly tailored
Strict in theory"fatal in
fact &usually
invalidated+
#e!er Lqual Protection =ender %ased
$lassification
$lassification must
serve an important
governmental ob8ective
3#I be substantially
related to that ob8ective
Dsually !ill invalidate,
but not al!ays
&intermediate standard+
A. GENERAL STAN(AR(S
75
I. 'J
th
3mendment Lqual Protection provides, #o State shall deny to any person the
equal protection of the la!s
II. Dnreasonable classifications by the federal government violate A
th
3mendment due
process %olling v Sharpe &')AJ+ &after %ro!n to apply to the desegregation of I$
schools+
III. B#LG !hen a classification is unreasona0leC ar0itrar& an+ in<i+ious does it violate
equal protection &unreasonable classification+,so all %ersons si;ilarl&
)ir)u;stan)e+ s$all 0e treate+ aliIe ?oyster =uano $o v :irginia &')75+
i<. Stan+ar+s o* Reasona0leness
'. Iuring the @arren $ourt era, Lqual Protection prime resort for overturning
legislation $reated a t!o tiered SB?
A. Socio-economic classification got traditional, deferential rational basis
B. 3#I la!s that created suspect classifications or significantly burdened
fundamental rights got strict scrutiny
.. Iuring the %urger $ourt, a 9
rd
intermediate SB? developed for gender cases
B. TRA(ITIONAL EPUAL PROTECTION (RATIONAL BASIS TEST),if la! challenged under
Lqual Protection if any state of facts reasonably can be conceived that !ould sustain the la!,
the e-istence of the state of facts at the time the la! !as enacted !ill be presumed 3#I the
challenger has the burden of sho!ing the classification has no rational relationship to a
permissible gov2t purpose and is essentially arbitrary &essentially insurmountable burden of
proof+
I. ?ail!ay L-press 3gency v #e! Gork &')J)+
'. $hallenged ?egulation,no vehicle may have advertisements D#LLSS
advertisement for o!n business in the course of usual business &and not
mainly for purpose of advertising
.. Ca8ority &Iouglas+
A. local authorities may reasonably have concluded that those !ho
advertise on their o!n trucks for o!n business do not pose the same
traffic problems &less quantity+ in the nature or e-tent of the
advertisingE
B. !" regard to times square,-It is no reLuire;ent o* eLual %rote)tion
t$at all e<ils o* t$e sa;e #enus 0e era+i)ate+ or none at all.F
&legislature doesn2t have to ban all distractions to ban one+
C. DPKLLI la!
/. /ackson &concurring+
A. Problem that the t!o classes create identical dangers %D1 the one
prohibited creates an opportunity for obno-ious enterprise or a huge
quantity"e-cess of advertising and resulting distractionE
B. Prefers to rely on Lqual Protection to strike do!n la! over substantive
due process b"c then legislature can 8ust broaden class &gives
legislature more freedom, does not bind hands like substantive due
process does+
ii. No )lose+ )lass,struck do!n the Illinois $ommunity $urrency L-changes 3ct that
regulated currency e-changes selling money orders 3LL e-cept the DS Post Bffice,
7'
3merican L-press, Postal 1elegraph $o and @estern Dnion &closed class+ Corey v
Ioud &')AJ+
'. State argued purpose to protect the public !hen dealing !" currency
e-changes &3merican L-press unquestioned solvency+
.. #ot rational,discrimination in favor of 3merican L-press does not afford
public protection
A. Legislature doesn2t kno! !ho !ill be solvent forever,premise false
iii. =es )lose+ )lass,creates a closed class and sustains b"c legislature had a legitimate
reason #e! Brleans v Iukes &')(H+ Dpheld regulation that prohibited pushcarts in
the 0rench Ruarter for historic preservation %D1 had grandfather clause for vendors
in operation over 75 years
'. Core deferential standard to legislative determinations of statutory
discrimination !hen state uses police po!ers !hen regulating in economic
areasE
.. &%D1 both+ Rational 0asis SOR !here no fundamental rights e-ist nor
proceed along suspect lines &suspect classifications+E
/. Bverrules Corey v Ioud e-plicitly,$LBSLI classes okay
IV. $ourt used deferential rational basis test to uphold an imposition of a differential ta-
rate on slot machines at racetracks and riverboats,does not violate Lqual Protection
0it;gerald v ?acing 3ss2n of $entral Io!a &7559+ &unanimous+
'. %reyer &ma8ority+,rational basis SB? and rational to advance one set of slots
and disadvantage another &one of !hich is fighting economic distress+
C. SUSPECT CLASSI8ICATIONS (RACE)
I. Struck do!n :3 miscegenation la! prohibiting interracial marriage b"c violated Lqual
Protection &race is a suspect class sub8ect to strict scrutiny+ 3#I substantive due
process infringed upon b"c right to marry is fundamental right Loving v :irginia
&')H(+
'. @arren &ma8ority+
A. ?elies on $onstitutional principle,eLualit& 0e*ore t$e law &over
historical analysis and social science as $onstitutional principles+
0. A%%lies stri)t s)rutin& to ra)ial )lassi*i)ations &clear purpose of the
'J
th
to eliminate all official state sources of invidious racial
discrimination+
i. :3 argues,framers of 'J
th
had not intention to cover
interracial marriageE :3 did not make racial purity argument
but instead social science argument that had legitimate state
interest in protecting children from the societal trauma of being
brought up in a mi-ed marriage %D1 rational basis is not
enough
ii. PLDS :3 only prohibits interracial marriages of !hite persons
demonstrates purpose !hite supremacy and not concern for the
social !elfare of children &invidious racial discrimination+
iii. PLUS ;arria#e is a *un+a;ental ri#$t,Skinner v State of
Bklahoma
77
C. note,even though Loving applied to all races &prohibiting interracial
marriage for the black and the !hite person+ it still !as coined
invidious racial discrimination
II. $ourt applied strict scrutiny %D1 upheld a !artime conviction for violations of a
military order e-cluding 3mericans of /apanese ancestry from certain designated
military areas 6orematsu v Dnited States &')JJ+
'. %lack &ma8ority+,racial classifications sub8ect to strict scrutiny &not per se
invalid+,and can be sustained !here there is -%ressin# %u0li) ne)essit&.F
III. Curder conviction of 33 defendant !here state la! e-cluded 33s from 8ury service
overturned under Lqual Protection Strauder v @est :irginia &'**5+
'. the la! in the States shall be the same for the %lacks as for the @hiteE that all
persons, !hether colored or !hite, shall stand equal before the la!s of the
States, and in regard to the colored race, for !hose protection the amendment
!as primarily designed, that no discrimination shall be made against them by
la! b"c of their color
A. note,even though Loving applied to all races &prohibiting interracial
marriage for the black and the !hite person+ it still !as coined
invidious racial discrimination
IV. State court2s consideration of private racial bias &and in8ury that racial bias may inflict
on child+ in removing child from mother violated Lqual Protection by embodying that
racial bias Palmore v Sidoti &')*J+
'. Private biases may be outside the reach of the la! %D1 the la! cannot directly
or indirectly give them effect
.. Keld, effects of even real racial pre8udice cannot 8ustify a racial classification
removing an infant child from the custody of its natural mother found to be an
appropriate person to have custody
A. Lo!er court #B1L--race has been allo!ed as a factor in adoption
proceedings %D1 unconstitutional as the sole reason to make or change
an adoption placement
B. Practical #B1L,no! even if a 8udge thinks bad b"c interracial
marriage !ill never say it Incentive to disguise racial bias in
something else to avoid being overruled &problem of ascertaining
discriminatory purpose !hen not e-plicit+
<. $& are ra)ial )lassi*i)ations not %er se in<ali+2
'. @hat !ould happen to affirmative actionF
.. Bther valid"not bad racial distinctions &if they e-ist+F
<i. -More e3a)tin# @u+i)ial s)rutin&F *or -+is)rete an+ insular ;inoritiesF un+er
ELual Prote)tion 09) ;inorities la)I t$e %oliti)al %ower to %rote)t t$eir interests
Dnited States v $arolene Products &')9*+ &Stone, footnote+
(. T!EORIES O8 EPUAL PROTECTION
I. Kistorical &:32s arg in Loving+,!hat the framers at the time of the 'J
th
3mendment
intended
79
II. %ickel,framers intentionally left Lqual Protection clause vague to leave room for
change !" future generations
iii. Criteria o* Sus%e)tness,some of the factors that have been considered in labeling a
classification suspect include &in cases above+.
'. the historical purpose of the Lqual Protection $lauseE
.. a history of pervasive discrimination against the classE
/. the stigmati;ing effect of the classificationE
4. classification based on an immutable status or condition !hich a person can2t
controlE
". discrimination against a political insular minority
E. (ISCRIMINATOR= A(MINISTRATION OR EN8ORCEMENT
I. 0acially neutral license policy struck do!n !here it segregates racially '55V Gick
@o v Kopkins &'**H+
'. Brdinance that req2d a permit for !ood laundries and not for brick struck
do!n !here 3LL 755 applications for permits from $hinese citi;ens denied
and 3LL applications by non-$hinese citi;ens granted
.. 3 neutral la! applied and administered by public authorities !" an evil eye
and unequal hand, so as practically to make un8ust and illegal discriminations
bet!een persons in similar circumstances, material to their rights, the denial of
equal 8ustice is still prohibited
8. (ISCRIMINATOR= PURPOSE > IMPACT
i. (is)ri;inator& I;%a)t alone +oes not )on)lusi<el& %ro<e +is)ri;inator& %ur%ose
although it may be one element of the evidence of discriminatory purpose
@ashington v Iavis &')(H+ Dpheld I$ police test for officers that resulted in more
black applicants failure than !hite applicants
'. @hite &ma8ority+
A. Iiscriminatory intent W Iiscriminatory impact O Lqual Protection
:iolation &black letter from case+
i. %D1 %arron notes more nuanced,must look at the totality of
the circumstances"relevant facts to infer disc purpose from dis
effects
ii. I* )an s$ow +is)ri;inator& intentC t$en s$i*ts 0ur+en o*
%roo* to $a<e )it& s$ow no +is)ri;inator& %ur%ose &a non-
racial valid 8ustification for regulation"test"etc+
B. Standing alone,discriminatory impact,does not trigger the rule that
racial classifications are to be sub8ected to strict scrutiny
C. #B1 overruling Gick v @o,distinguishing b"c there it !as so
e-treme &'55V+, here JJV 33 police officer
.. Stevens &concurring and 8oining court2s opinion+,!ould give the
discriminatory impact CB?L !eight
A. b"c concerned it is too difficult to prove discriminatory intent &and
impact is actually probative of intent,actor is presumed to have
intended the natural consequences of his deeds+
B. 3#I discriminatory impact bad thing &!hen the impact is large like in
Gick @o+ then it doesn2t matter !hether the standard is phrased in
terms of purpose or effect
7J
). Botto; line H the line bet!een discriminatory purpose and
discriminatory effect not so bright or critical in e-treme circumstances
/. %rennan !" Carshall &dissenting on statutory issue not constitutional+
II. #eed proof of racially discriminatory intent or purpose in order to prove Lqual
Protection violation,only need to sho! race !as a motivating factor strike la! to
shift burden to to!n to prove !ould have passed la! even !"out discriminatory intent
or purpose &but not sho!n here+ :illage of 3rlington Keights v Cetro Kousing Iev
$orp &')((+,Xoning ordinance survived Lqual Protection challenge !here only
evidence !as disparate impact
'. Po!ell &ma8ority+
A. Iiscrimination does not have to be sole or even dominant
discriminatory purpose of ordinance"la!,onl& nee+ to %ro<e t$at
ra)e was a -;oti<atin# *a)torF *or t$e law.
i. Look to circumstantial and direct evidence to determine if race
!as a motivating factor such asM
'. historical background &here if it had been implemented
to bar this particular housing pro8ect,but !asn2t+E
.. departures from the normal sequence of proper
proceduresE
/. legislative or administrative history &testimony+E
4. specific prior events &before la! enacted+E
". disparate impact &not sufficient alone+
5. not e-haustive listM
ii. I8 %ro<e +is)ri;inator& intentC t$en s$i*ts 0ur+en o* %roo*
to t$e town9;uni)i%alit& t$at it woul+ $a<e %asse+ t$e law
e<en w9out t$e +is)ri;inator& intent (*ootnote .').
B. Iissent &not in book+,to remand for further proceedings
III. Bverturned la! !here &'+ discriminatory intent !as a motivating factor 3#I &7+ no
permissible intent e-isted 3#I &9+ la! !ould #B1 have been enacted in absence of
racial discrimination Kunter v Dnder!ood &')*A+,overturned 3L la! that stated
misdemeanants convicted of crimes involving moral turpitude could not vote under
Lqual Protection $lause Ss, black < !hite, disenfranchised for !riting a bad check
'. ?ehnquist &ma8ority-unanimous+
A. La! neutral on its face but evidence of discriminatory purpose
i. proceedings of convention,
ii. several historical studies,
iii. and e-pert testimony of historians
B. 3dditional desire to discriminate against poor !hites IBLS #B1
render an impermissible purpose to discriminate a but-for motivation
of the enactment
C. NN#ote,;ust %ro<e ALL / *a)ts to %ro<e +is)ri;inator& %ur%ose
to striIe +own law un+er ELual Prote)tion
7A
IV. Iiscriminatory purpose #B1 sho!n !hen lifetime preference given to veterans for
state civil service provisions !here )*V of veterans are male Personnel
3dministrator v 0eeney
'. Iiscriminatory purpose implies that the decision-maker picked a preference
for veterans to accomplish the end goal of keeping !omen in a stereotypic and
predefined place in public employmentE
.. Gnowle+#e insu**i)ient,#B1 enough that legislature kne! that this !ould
be the consequence of their decision
V. Lvidence of racial intent that a city2s refusal to issue building permits to a lo!-income
housing developer until a referendum on the pro8ect !as conducted !as
I#SD00I$IL#1 to maintain an LP claim &3lso re8ected a substantive due process
claim+ $ity of $uyahoga 0alls v %uckeye $ommunity Kope 0oundation &7559+
'. Pro)e+ural !istor&,group of citi;ens submitted pro8ect for referendumE
%uckeye said administrative matter not eligible for referendum &state court
overruled < %uckeye appealed+E %uckeye !ent to get permit, city refused to
issue permit prior to referendum !here no in8unction !as issuedE %uckeye
!ent to federal courtE then Bhio Supreme court invalidated the referendum &in
violation of the State $onstitution+ < issued permits for constructionE federal
action still e-ists,only for damages for delay of pro8ectE district court found
for city, H
th
rev2d found material issue of fact over city embodying the racial
bias of the to!n membersE Supreme $ourt reversed
.. B2$onner &ma8ority+
a. No +is)ri;inator& %ur%ose o* t$e town B9C onl& t$e alle#e+
ra)iall& +is)ri;inator& <oter senti;ent,not state action for LP
purposes &'
st
3mendment concerns of voters+E
B. 3#I submitting the ordinance to referendum, the city follo!ed
facially neutral procedures in the to!n charterE
C. 3#I refusing to issue permits !hile the referendum !as pending !as
merely ministerial and nondiscretionary acts,no evidence motivated
by racial animus &due to racial purpose+E
(. theory city officials acted in concert !" private citi;ens for racial
reasons abandoned and given no legal support &independent statements
of private citi;ens insufficient evidence of racial intent by city
officials"state actors+
/. @hat about Palmore v Sedodi &stating that state cannot give affect to racial
bias in child custody case+F Iistinguishable b"c by political process &voting+
rather than 8udicial mandateF
<i. Pro0le;s w9 reLuirin# %ur%ose
'. determining intent of a group like a legislature practically impossibleE
.. even individually, difficult to determine intent due to unconscious or subtle
motives that guide peopleE
/. moral responsibility for actions e-tend beyond the actions one intends,!rong
not to take the interests of a particular group into account b"c no one could
prove I#1L#1 to discriminate against that groupE
4. courts out to interpret Lqual Protection to police ho! people are treated by
their government,the permissibility of la!s !hat matters, not the purity of
legal motives
7H
<ii. Rationale *or reLuirin# %ur%ose
'. #o $onstitutional duty to remedy a harm it did not cause &remedy is the
political process in our $onstitutional system+E
.. @ould invalidate many la!s and !ay think of la!making,as fi-ing all
disparate racial impactE
/. Insurmountable burdens on the legislature to be clairvoyant and 8udiciary to
remedy all !rongs
G. (ISCRIMINATION IN E(UCATION
I. LP clause #B1 intended to abolish distinctions based upon color, or to enforce social,
as distinguished from political, equality, or commingling of the races upon terms
unsatisfactory to either Plessy v 0erguson &'*)H+,separate rail!ay cars for blacks
and !hites upheld under LP
'. Ca8ority
a. Lots o* +e*eren)e to t$e le#islature,reasonable regulation &rational
basis revie!+E
B. ?e8ects the stamp of a badge of inferiority on the colored race,only
b"c colored race chooses to put that construction on it &social
pre8udice C3G not be overcome by legislation,must come about
from a mutual appreciation of each other2s merits and voluntary
consent of individuals+
C. Iistinguished political from social equality &to not fall under
precedent of Strauder v @:3 &'**5+ !hich held that keeping 3frican
3mericans off 8uries !as a per se violation of the LP clause+
.. / Karlan &dissenting+
A. Legislation of separate facilities for blacks and !hites inconsistent !"
equality of rights 3#I personal libertyE
B. $onstitution ensures no superior"dominant class of citi;ens,no caste
system &color blind $onstitution+,all citi;ens equal before the la!E
C. seeds of race hat cannot be planted under the sanction of la!E
(. creates a distrust and distance bt!n the races,permeates and codifies
inferiority of black citi;ens
ii. E+u)ation (is)ri;ination Cases un+er Pless&
'. $ourt held unconstitutional Cissouri plan !here the state provided a la!
school for !hites and financed legal education for blacks in other states b"c not
equal Cissouri e- rel =aines v $anada &')9*+
A. Kughes &Ca8ority+,privilege, a legal education !"in the state, created
for !hite la! students !hich is denied to black students
.. Keld that black graduate students !ho !ere consigned to certain desks in the
classroom < special areas of the library and cafeteria !ere not being afforded
their present and personal right to equal protection of the la!s CcLaurin v
Bklahoma ?egents &')A5+
A. #ot equal b"c impaired ability to study, engage in discussions, and
e-change vie!s !" other students and to learn his"her profession
/. $ourt found inequality in t!o separate la! schools for black and !hite
citi;ens !"in the state !here tangible resources such as reputation of faculty,
e-perience of administrators, influence of alumni, and community standing
!ere all D#LRD3L S!eatt v Painter &')A5+
7(
III. Keld racial segregation in public schools violated LP regardless of equal resources
&and ordered each party to formulate decrees on remedy+ %ro!n v %oard of
Lducation P%ro!n IQ &')AJ+,class action Ss from South seek entrance to local !hite
schools
'. @arren &Dnanimous court+
A. Ioes not e-plicitly reverse Plessy,distinguish as involving
transportation &only re8ects language regarding e-tent of the
psychological kno!ledge of the time+E
0. Must )onsi+er %u0li) e+u)ation an+ its )urrent i;%ortan)e
i. most important function of state < local governmentE
ii. compulsory education la!sE
iii. very foundation of good citi;enship,principal instrument to
a!aken child to cultural values, prepare for professional
training, ad8ust to life &cannot succeed !"out school+E
C. Lven tangibly equal schools deprives minority children of LPE
(. %"$ creates feeling of inferiority,detrimental effect upon 33
children2s self esteem, motivation to learn depriving of benefits !ould
receive in racially integrated school system
i. 1KL social science statistic footnote Y''
e. Se%arate e+u)ational *a)ilities are in$erentl& uneLual,does #B1
mention SB?
8. ?estores case to docket
i. gives DS time to ad8ust
ii. also makes %ro!n applicable to 3LL states &not 8ust parties to
%ro!n I+
.. T$in#s unusual a0out t$is +e)ision (<ia Barron)
A. SKB?1E
B. limited to Lqual Protection &no fundamental rights analysis+E
C. unanimous opinion &@arren2s miraculous ability to get everyone on
board+E
(. $ase restored to docket,constitutional principle B#LGE remedy to
come later
/. Note,after %ro!n the $ourt issued a serious of per curiam opinions
invalidating segregation in various public facilities based upon %ro!n
IV. $ases remanded to federal district courts to make all the decrees and order necessary
consistent !" the opinion that are necessary and proper to admit public schools on a
racially nondiscriminatory basis wit$ all +eli0erate s%ee+ the parties to these cases
%ro!n v %oard of Lducation P%ro!n IIQ &')AA+
'. @arren
A. 0ull implementation of these #L@ constitutional principles may
require solution of varied local school populationsE
B. Local courts !ill be guided by equitable principlesE
C. $ourts may consider problems that relate to the follo!ing
i. administrationE
ii. arising from physical condition of the school plantE
iii. the transportation systemE
i<. personnelE
7*
<. a system of determining admission to schools on a non-racial
basisE
<i. revision of local la!s < regulations necessary to solve the
foregoing problems
<. $& +i+ Court re;an+ to *e+eral +istri)t )ourt an+ not State )ourts *ro;
w$en)e t$e& )a;e2
'. less local pressure &federal 8udges appointed, not elected+E
.. better to create a unitary system
<i. it$ All (eli0erate S%ee+
'. Suggested that $ourt !as concerned !" Southern !hite opposition more than
administrative issues in case,and there !as resistanceE
.. Iesegregation !as slo! going until 1itle :I of the $ivil ?ights act that denied
all federal funds to schools that !ere racially segregated
/. $ooper v 3aron,state guardsmen prevented black children from entering the
school b"c of =overnor attempted to nullify Supreme $ourt decision
Lisenho!er &not necessarily supporter of %ro!n+ sent federal troops to Little
?ock supervise black children entering the school
4. Supreme $ourt re8ected a federal gov2ts request to delay the desegregation
order in 95 Cississippi counties 3le-ander v Kolmes $ounty %oard of
Lducation &')H)+ &per curiam+
A. $ontinued operation of segregated schools under a standard of Zall
deliberate speed2 for desegregation is no longer constitutionally
permissible Dnder e-plicit holding of this $ourt the obligation of
every school district is to terminate dual school systems at once and
operate no! and hereafter only unitary schools
0. It was *reaIinB ':5:Q &'A years after %ro!n I+
VII. Iue Process $lause of the A
th
3mendment includes LP of the 'J
th
b"c %B1K sprang
from the principle of fairness %o!ling v Sharpe &')AA+ &@arren for unanimous
court+,e-tended %ro!n holding to federal la!"I$ public schools
'. but applied stricter standard of suspect classifications
<iii. (e Jure <s. (e 8a)to Se#re#ation
'. Ie /ure O racial separation product of some purposeful act by gov2tE
.. Ie 0acto O migration"living patterns, not by any act of gov2t
!. A88IRMATIVE ACTION
I. Plan to desegregate by making plan ('V !hite" 7)V black okay as a starting point
%D1 only okay as a temporary measure that could not be ordered !"out a background
of discrimination S!ann v $harlotte-Cecklenburg %oard of Lducation &')('+
'. Rationale H !here there is de 8ure discrimination court can provide a remedy
!hich is adequate &to fi-ing+ !ithin the scope of the discrimination
II. 3ffirmative 3ction case dismissed for mootness b"c applicant already admitted and
received degree Ie 0unis v Bdegaard &')(J+
'. Bnly / Iouglas reached the merits of 33ction &dissenting+
7)
A. treat race conscious 33ction programs as almost per se
unconstitutionalE
B. consideration of race usually introduces a capricious and irrelevant
factor &!hich leads to invidious discrimination+E
C. !hatever race,applicant deserves to be considered on individual
merit in a race neutral !ay
(. any state sponsored preference to one race over the other in a
competition is invidious racial discrimination and violates LP
III. Struck do!n 33 program under the LP clause,required Dniversity to admit %akke
%D1 left door open for 33 program !"out quota system ?egents of the Dniversity of
$alifornia v %akke &')(*+
'. T$e AA Pro#ra; C$allen#e+,the program allo!ed applicant to check
minority bo- to be considered for general admission &*J spots+ 3#I minority
spots &'H spots+ thereby limiting Y of 1B13L spots available to non-minority
applicants &!here all '55 spots !ould hypothetically be available to minority
applicants if applied+ @hites could"and did apply for the
minority"disadvantaged group spots but none had ever gotten in
.. Po!ell &8udgment,plurality+
A. 1he program is a classification based on race and ethnic backgroundE
0. SOR,Ra)ial > et$ni) )lassi*i)ations o* an& Iin+ are sus%e)t AN(
are su0@e)t to stri)t s)rutin&
i. Ioesn2t matter that the S is !hite and not part of a discreet
and insular minority requiring e-traordinary protection from
the ma8oritarian political process Carolene Pro+u)ts Co.
rationale (re@e)te+).
ii. ?efuses to hold that discrimination or characteri;ations against
the !hite ma8ority cannot be suspect for LP purposes even if
benignE
'. problem !" idea of benign discrimination &see
%rennan2s concurrence+
C. 0rames LR protection as an I#II:IID3L rightE
(. $ontinuing racial classifications !ould have negative results
i. preferential programs reinforce stereotypes that certain groups
are unable to achieve success !"out special protectionE
ii. unfair to make an innocent person bear the burden
E. School desegregation precedents &S!ann+ do not apply b"c there !ere
creating a remedy to a found < proved constitutional violation &a
8udicial determination had been made+ &de 8ure discrimination+ 3#I
here only societal discrimination !hich is #B1 a sufficient basis for
employing state remedy
i. #B racial classifications !here there is #B prior 8udicial
finding of $onstitutional"Statutory discriminationE
95
*. Anal&sis o* StateBs / -le#iti;ate %ur%osesF Un+er SOR,State must
sho! that is purpose or interest is both constitutionally permissible and
substantial 3#I that its use of the classification is necessary to the
accomplishment of its purpose or safeguarding of its interest
i. to assure V of student body racial or ethnic,invalidE
ii. State has a legitimate interest in preferring members of
historically in8ured groups B#LG if 8udicial determination,
therefore that purpose is also invalidE
iii. to provide healthcare to underserved groups,invalid b"c no
req2d &%arron believes could have crafted program to serve
those interests but then again !hy limited only to minorities if
others also !anted to serve underserved populations+E
i<. e+u)ational +i<ersit& H COMPELLING STATE INTEREST
'. !oora&,leaves the door open for 33ction[
.. 3cademic freedom special '
st
3mendment concern
/. Lndorses PLDS system of Karvard program,race may
be a factor but cannot be the factor
/. Stevens !" %erger, Ste!ard < ?ehnquist &concurring in 8udgment in part <
dissenting in part+
A. :iolated 1itle :I ban on using race as the basis for e-cluding %akke
from participating in a federally funded program
B. Looked at plain meaning of the statute
C. ?3$L can #B1 be a factor
4. %rennan !" &concurring+
A. ?eiterates holding of A,race can be a factor,po!er of State <
0ederal gov2t to act affirmatively to achieve equal opportunity
B. 3#I race can be a factor !hen 8udicial determination has been madeE
C. ?acial classifications 3?L #B1 per se invalid,but can be 8ustified by
an overriding statutory purposeE
+. SOR (i;;e+iate *ro; #en+er )ases),racial classifications designed
to further remedial purposes (') must serve important governmental
ob8ectives 3#I (.) must be substantially related to achievement of
those ob8ections
i. in ot$er wor+sC t$e SOR )$an#es w$en t$e +is)ri;ination is
a#ainst w$ites 09) not sus%e)t )lass,a class not saddled !"
the history of unequal treatment, relegated to a position of
political po!erlessness to command protection from the
ma8oritarian political process
e. Anal&sis o* S)$oolBs Poli)& un+er t$is SOR
i. remedying past SB$IL13L discrimination,:3LIIE
'. sufficiently important
.. 3#I does not stigmati;e any discrete group,no harm
comparable to that imposed upon racial minorities by
e-clusion or separation !ill result, nor !ill %akke be
marked inferiorE no pervasive in8ury if for remedial
purposes &no second class status+E
/. 3#I reasonable b"c
9'
a no other practical means to remedy the situationE
b cannot use \ status to remedyE
c considers each applicant I#II:IID3LLGE
d same as the plus system,8ust semantics
*. Brennan 0elie<es -0eni#nF +is)ri;ination e3ists.
i. D/B v $arey,&in that decision said+ preferential race
assignments may in fact disguise a policy that perpetuates
disadvantageous treatment of the proposed beneficiariesE may
stimulate race consciousnessE may also stigmati;e against
recipient groupsE therefore even &seemingly+ benign policy
requires heightened scrutiny
". Carshall
a. it is 09) o* a le#a)& o* uneLual treat;ent ('EEs o* &ears
+is)ri;inatin# 0asis on )olor o* sIin) that !e not must permit the
institutions of this society to give consideration to race in making
decisions about !ho !ill hold the positions of influence, affluence, and
prestige in 3mericaE
0. AN( +onBt nee+ a @u+i)ial to %ro<e it.
5. %lackmun,in order to get beyond racism !e must first take race into account
In order to treat some persons equally, !e must treat them differently @e dare
not let the LP clause perpetrate racial supremacy
6. BREAG(ON
A. Po!ell, %rennan, @hite, Carshal < %lackmun &A+ agreed race can be a
factorE
B. Po!ell, Stevens, %urger, Ste!art, < ?ehnquist &A+ agreed to admit
%akke < to invalidate this particular programE
C. Stevens, %erger, Ste!art < ?ehnquist,race can #B1 be a factor
(. #B /DS1I$L advocated for the rational basis SB?
i<. AA)tion Cases InO0etween BaIIe > Bollin#er I > II &not assigned but discussed in
class+
'. $ourt upheld a set aside provision requiring state and local governments
receiving federal public !orks grants to allocate at least '5V of the funds for
purchasing services from minority business enterprises 0ullilove v 6lut;nick
&')*5+
A. 0ound program limited and tailored &limited time only, provided
!aivers if impossible, etc+
B. ?emedial,operating to remedy prior discrimination in construction
industry
C. 0ound burden on non-minorities incidentalE
(. no agreement on SB?,court closely e-amined program
&heightened+
97
.. Court $el+ stri)t s)rutin& a%%lie+ to state an+ lo)al AA)tion %ro#ra;s,
individual right to be treated !" respect not group right $ity of ?ichmond v
/3 $ronson &')*)+,struck do!n 95V set aside, called remedial but no direct
evidence,
a. Nee+ stri)t s)rutin& &'J
th
3mendment LP b"c local and State+ to
smoke out covert racism and allegedly benign plans actually based
on racial stereotypes"pre8udice
/. Two 8CC %oli)ies #i<in# ;inorit& %re*eren)e to %ro;ote +i<ersit& in ra+io
> TV %ro#ra;;in# VALI( un+er EP )lause un+er inter;e+iate s)rutin&
Cetro %roadcasting v 0$$ &'))5+,A to J decision '+ !as enhancement to
license an applicant !" minority participation in o!nership < management
!eighed !" other factors in comparing applications for a ne! stations &like
plus factor in schoolsE 7+ maintains a distress sale policy !hich allo!s a
licensee !hose qualifications are questioned to transfer license to a qualified
minority enterprise !"out having to undergo and 0$$ hearing %B1K
e-plicitly approved < mandated by $ongress
A. SB? O intermediate level &A
th
3mendment LP b"c 0$$+E
B. serves important government interest of promoting program diversity
,vital to public interest and '
st
3mendment values
4. ALL stateC lo)alC AN( *e+eral ra)ial )lassi*i)ations ;ust 0e anal&?e+
un+er STRICT SCRUTIN= 3darand v Pena &'))A+ &plurality+,federal
program provided financial incentives to gov2t contractors to hire sub-
contractors certified as small business controlled by social and economically
disadvantaged individualsE rebuttable presumption that all racial and ethnic
minority groups are socially disadvantaged
A. ?ationale,'+ skeptical of benign purpose,need to smoke out covert
invidious discriminationE 7+ need for consistency &framed as an
individual right+E 9+ congruence,la! should be same under A
th
< 'J
th

3mendment
B. Bverruled Cetro %roadcasting &as far as SB? goes+
V. Dpheld 33ction program at la! school under LP clause =rutter v %ollinger PLa!
School IecisionQ &7559+
'. Procedural Kistory. Iistrict $ourt applied strict scrutiny and struck do!nE
$ourt of 3ppeals rev2d and found that since diversity is a compelling gov2t
interest and like Karvard2s plus program,sufficiently narro!ly tailored so
upheld
.. 1he Policy. focuses on academic ability coupled !" fle-ible assessment of
applicant2s talents, e-periences, and potential to contribute to environment,
look at personal statement, rec letters, essay &soft variables+E 3#I =P3 <
LS31 &hard variables+ Policy says no score !ill guarantee admissionE nor
does lo! score bar admission Policy does not restrict type of diversity
allo!ed in diversity essays
/. B2$onner &court+
A. @hen plurality, supposed to look at the position of the court on the
narro!est grounds &the Carks test+, but B2$onner doesn2t use that test
0. SOR H stri)t s)rutin&C 0ut PASSES.
99
C. Says Po!ell !as right !hen said race $3# be a factor,attainin# a
+i<erse stu+ent 0o+& IS a COMPELLING STATE INTERESTE
i. b"c benefits in the classroom and in real !orld substantial
'. important purpose of public education and freedom of
speech and though in university environmentE
.. businesses require a variety of skills and global
marketplace requires diversityE
/. necessary for citi;enshipE
4. grounds for #ation2s leaders
+. Law S)$oolBs %lan is NARROL= TAILORE(.
i. highly individuali;ed, holistic determination &no predetermined
or technical bonuses+E
ii. race used in fle-ible !ay !" other soft variables also given
!eightE
iii. no quota system,goal of obtaining a critical mass of
minority students is not a quota &!here V change substantially
each year+E
i<. no race neutral alternatives available !"out losing academic
prestige
e. SUNSET %ro<ision,e-cept in 7A years no longer needed
4. =insburg !" %reyer &concurring+,no strict time frame needed &and 7A year
limit is na]ve+
A. It is !ell documented that conscious and unconscious race bias remain
alive and impede our highest values and idealsE
B. stats on largely minority schools and educational lag,realit& that
minorities still encounter markedly inadequate and unequal educational
opportunities
". Scalia !" 1homas &concurring and dissenting+
A. Lducational benefit of good citi;enship and better preparation for
society is not a valid educational benefitE
B. $ritique that this !ill open the floodgates up to Ruestion,!hat is
individuali;edE !hat are separate admission tracksE !hat is a good faith
effort of a universityE !hat is a critical mass vs quotasE etc
). Constitution %ros)ri0es #o<Bt +is)ri;ination on 0asis o* ra)e H
PERIO(.
5. 1homas !" Scalia &concurring and dissenting+
A. agrees 33ction programs dead in 7A yearsE
B. neutral !ay to avoid race classifications is to lo!er overall standards,
not a compelling state interest to have an elite institution
C. #B compelling state interest in diverse student body
6. ?ehnquist !" Scalia, 6ennedy, < 1homas &dissenting+
A. 0ails under strict scrutiny b"c #B1 narro!ly tailored,really an effort
to achieve racial balancing under a screen of critical massE
B. $ritiques $ourt for saying strict scrutiny but using deferenceE
7. 6ennedy &dissenting+
A. @hile race may be a factor CDS1 apply the safeguards Po!ell
requires,rigorous 8udicial revie! under strict scrutinyE
B. Kere, $ourt uses deference,%D1 School must prove did not use race
in an unconstitutional !ay
9J
C. #o guidelines to make sure at end of process race didn2t matter more
&that !eren2t looking at quotas !hen individually e-amining
applications+E
(. $ourt does not really make the school e-plore race neutral alternatives
<i. Stru)I +own AA)tion %ro#ra; at un+er#ra+uate under LP clause =rat; v
%ollinger PDndergrad IecisionQ &7559+
'. Program. Predetermined points for certain areas. =P3, Ruality of KS, essay,
leadership, S31, race &75+, athletic ability &75+, discretionary variable &75+,
disadvantaged background &75+, etc
.. Procedural Kistory. Iistrict $ourt held diversity compelling gov2t interest and
sent up questions for interlocutory revie!
/. ?ehnquist &opinion+
a. Pro#ra; is NOT narrowl& tailore+,fails strict scrutiny b"c does not
apply the individuali;ed consideration of each applicant
B. Bther variable &giving 75 points for other diversity+ does not make
the program narro!ly tailored
i. even though all seats are open the numbers are so set so it is
ske!ed so all seats aren2t really open, cannot make an
individuali;ed determination &req2d to give certain values to
certain characteristics+
). Pra)ti)al 0ar to in+i<i+ual re<iew (OES NOT re+ee; a
Constitutional %ro0le; &tough+E
(. &#ote,glosses over standing issue+
4. B2$onnor &concurring+
A. e-plaining herself for concurring &and !riting =rutter+,b"c does not
provide for a meaningful individuali;ed revie! of applicantsE
B. automated Y system give the soft variables more hard values so no
longer are considered equally
". 1homas &concurring+,concurs b"c of precedent %D1 reiterates that thinks
state2s use of racial discrimination in higher education is categorically
prohibited
5. %reyer &concurring in 8udgment+,concurs !" 8udgment but #B1 opinion of
the courtE concurs !" B2$onner2s determination that this 33 policy fails b"c of
lack of individuali;ed revie! %D1 also concurs !" =insburg2s
inclusion"e-clusion distinction,that legislation to e-clude a race requires
strict scrutiny !hile legislation to compensate for e-clusion &to create
inclusion,such as 33ction+ is sub8ect to a close standard of revie! %D1 not
strict scrutiny
6. Stevens !" Souter &dissenting+
A. ?aises standing issue,ho! can someone be a S !ho !ill not be able
to be a freshman ever again &b"c the transfer admissions policy is
II00L?L#1 than the freshman admission policy,doesn2t have
points+,and past in8uries do not give rise to future in8uries Standing
issues.
i. never applied to transferE
ii. transfer policy not before courtE
iii. remedy !ouldn2t affect transfers at allE
i<. transfer policy does not use points
9A
7. Souter !" =insburg &dissenting+
A. Points out that giving preference to top '5V schools in the state &state
school+ is 8ust as race conscious
0. Pro#ra; Constitutional
i. all competing for the same Y of seatsE
ii. no quotas e-istE
iii. can still get the 75 points even if not automatically for race &can
get points for lots of things+
i<. Bf course they assign values to the characteristics,that is !hat
the counselors do !hen they look at an individual, same thing
,still an individual, holistic revie!
<. @hy squabble over Y of points &!ould it be okay if only '5
points for diversity+F
). BUT no stan+in#.
:. =insburg !" Souter &dissenting+
A. re-emphasi;es #ation2s discriminatory past &and present+E
B. Same SB? should #B1 control 3LL racial classifications
C. 'J
th
3mendment req2d that may not deny to any personMthe equal
protection of the la!s allows a +i**eren)e 0etween EACLUSION
an+ INCLUSION.
i. 3ctions designed to burden groups long denied full citi;enship
&LU$LDSIB#+ should not be given the same SB? as measures
taken to eradicate discriminatory effects &I#$LDSIB#+
+. Ra)e is a sus%e)t )ate#or& B9C it $as 0een use+ to )reate ra)ial
eLualit&,BUT !here race is considered for the purpose of achieving
racial equality no automatic proscription is in order
E. SB? O close revie! &more than rational basis, less than SS+
8. Implies that this !ill incent dishonesty in order to achieve equality and
diversity,If honesty is the best policy, surely Cichigan2s accurately
described, fully disclosed $ollege affirmative action program is
preferable to achieving similar numbers through !inks, nods, and
disguises
<ii. Su;;ar& o* To+a&Bs AA EP law TO(A=
'. Bpen
.. Iiversity is a compelling governmental interest in educationMbut other areas
such as construction and gov2t 6sF Caybe not &3 carpenter is a carpenter+
i. Gen+er Classi*i)ations
I. Inter;e+iate SOR,purposeful gender classifications against !omen or men must
serve important gov2t ob8ectives and must be substantially related to achievement of
those ob8ectives $raig v %oren &')(H+
'. Dsually court !ill use the actual gov2t purpose &proposed+ and demand close
correspondence of the classification to that end $lassifications &often+ fail b"c
they are not substantially related to the gov2t interest
.. Intermediate revie! b"c ma8ority of court has never qualified se- as a suspect
classification &only J at a time have+
/. 3lso, similar to race b"c history of discrimination &historic and pervasive+ and
se- is highly visible and immutable %D1 not discrete and insular minority
9H
ii. (enial o* EP to o;en
'. Dpheld e-clusion of !omen from legal practice,no LP for !omen %rad!ell
v Illiniois &'*(7+
.. Prior to ')(', the court generally upheld gender classifications using
traditional rational basis revie!
iii. 8or;ati<e Perio+
'. Dnanimously struck do!n la! giving males preference over females as
administrators of estates using se- as a suspect classification,rational basis
revie! ?eed v ?eed &')('+ &%urger+
A. State2s purpose. to avoid family disputes,03ILLI rational revie!
B. $annot pick one se- over the other 8ust to avoid a hearing on the merits
,not rational
C. Providing dissimilar treatment to men and !omen similarly situated
violated LP
.. 0rontiero v ?ichardson &')(9+
A. Statute ^ issue O military men receive more \ for having !ives
automaticallyE but military !omen must prove husbands are dependent
on !omen in order to get more money
B. %rennan !" Iouglas, @hite, < Carshall &ma8ority+ &plurality+
i. !istor& o* +is)ri;ination a#ainst wo;en,in the name of
romantic paternalism that puts !omen not on a pedestal but
in a cage
ii. !i#$ <isi0ilit& o* se3,!omen still face pervasive
discrimination in education, 8obs, and politics
iii. SOR H stri)t s)rutin& (0ase+ on ERABs %assin#)
i<. =ov2t claims purpose O administrative convenience &cheaper+
b"c men are less likely dependent on husbands than !ives are
dependent on husbands
'. %D1 gov2t offers no concrete evidence that differential
treatment save gov2t any \ &!ould have to prove that it
is cheaper to give all men e-tra than !ould be to have
hearings for everyone to survive strict scrutiny+E
.. 3LSB lots of evidence many !ives !ould fail to
qualify,may even be over paying
<. :alue of LP greater than efficiency any!ay,cannot sacrifice
$onstitutional protection for administrative convenience
C. Po!ell !" %urger < %lackmun &concurring+
i. Se- not a suspect classificationE
ii. SOR H rational 0asis an+ *ails un+er t$atR
iii. 3LSB, need not determine SB? b"c L?3 in process of being
adopted !hich !ill determine SB?,political R
(. Ste!art &concurs+,invidious discrimination under ?eed
E. ?ehnquist &dissents+
/. Esta0lis$es inter;e+iate SOR. $raig v %oren &did not have to read but
talked about in class+
A. Po!ell &concurring+,!ould have struck do!n under rational basis of
?eed
9(
B. Ste!art &concurring+,!ould have struck do!n under rational basis of
?eed
C. ?ehnquist &dissenting+,!ould have upheld under rational basis of
?eedE critiques standard of revie! out of the air
(. Stevens &concurring+,one thing to elevate standard for !omen, but
different to raise standard for men &not historically discriminated
against+
4. %D1 no! more teeth to the intermediate level of scrutiny,see belo! DS v
:irginia
i<. (is)ri;inator& Pur%ose
'. @hen a statute is gender-neutral on its face and is challenged under LP b"c
!omen are disproportionately adversely affected, must ask &'+ !hether the
statutory classification is indeed neutral &not gender based+E 3#I &7+ !hether
the adverse effect reflects invidious gender-based discrimination Personnel
3dministrator v 0eeny &')()+,@oman-S challenging preference for
veterans based on discriminatory impact on !omen &)*V of veterans !ere
maleE admits severe impact on !omen2s position in civil service 8obs+,Keld,
:3LII under LP
A. Statute ^ Issue. =ives all veterans preference for state civil service
positions,CDS1 be considered for appointment ahead of any
qualifying non-veterans &1he preference operates over!helmingly to
the advantage of men+
B. Ste!art &Ca8ority+
i. Is t$e statue %re*errin# <eterans reall& #en+erOneutral2
'. Ges, b"c definition of veterans is neutral and some
veterans are !omen &only 7V in the state but some+E
la! disadvantages all non-veterans regardless of se- &a
lot of non-veterans are men+
ii. (o t$e e**e)ts re*le)t in<i+ious #en+erO0ase+
+is)ri;ination2
'. #o,discriminatory intent &to disadvantage !omen or
advantage men relative to !omen+ did not influence the
legislatures2 choice
.. IB #B1 find invidious gender-based discrimination
based on a foreseeability test %D1 a purpose"intent test
a ie, the fact that the la! !ould so obviously
place a lifetime disadvantage to !omen in civil
service positions is not enough to sho! that the
I#1L#1 !as to discriminate against !omen &or
to reflect gender-based discrimination to
violate the LP
C. Stevens !" @hite &concurring+,compares Y of males disadvantaged to
Y of females and since both big all is a-okay
i. #ote,even though the male number is about half the female Y
(. Carshall !" %rennan &dissenting+
i. $hoosing veterans preference evidences purposeful
discriminationE
9*
ii. 3dopts the foreseeability standard of discrimination,w$ere
t$e *oreseea0le i;%a)t o* a neutral %oli)& is SO
+is%ro%ortionateC (S!I8TS BUR(EN) t$e 0ur+en s$oul+
rest on t$e State to esta0lis$ t$at se3O0ase+ )onsi+erations
%la&e+ no %art in t$e )$oi)e o* a %arti)ular le#islati<e
s)$e;e.
iii. #ot even close to neutral in application,)*V of veterans are
male
i<. PLDS legislative history reflects the $ommon!ealths2
reali;ation that the la! !ould keep !omen in traditional 8obs
<. @hile the goals of the state are legitimate, the State has failed
to sho! a sufficient relationship bet!een its ob8ectives and the
means chosen to affect them &under the intermediate SB?+ so
should 03IL
.. (Q) $ourt upheld a $3 disability insurance program !hich e-empted from
coverage any !ork loss resulting from normal pregnancy using the rational
basis test =edulig v 3iello &')(J+ (Q) (Iills +is)ri;inator& e**e)t t$eor&)
a. Stewart &ma8ority+
i. Rational Basis SOR O real classification
ii. Bkay b"c does not e-clude one gender, only one condition,
pregnancy from the list of disabilities
iii. 3%SL#1 an e-plicit sho!ing that e-clusion of pregnancy !as
a covert !ay to discriminate against !omen,there is no LP
violation
i<. 1he t!o classes aren2t !omen and men, %D1 pregnant !omen
and non-pregnant persons &including %B1K men and !omen+
B. Iissent &%rennan !" Iouglas < Carshall+,such dissimilar treatment
of men and !omen on the basis of physical characteristics ine-tricably
lined to one se-, inevitably constitutes se- discrimination
). Pra)ti)al Result,if e-clusion of pregnancy does not prove I#1L#1
to discriminate, then #B1KI#= !ill baring e-plicit statements
i. #B1L. =eneral Llec $o v =ilbert e-tended this treatment of
pregnancy under 1itle :II %D1 !as rev2d by a congressional
amendment in ')(*
ii. #B1L. real gender classification
<. -RealF Gen+er (i**eren)es,!here !omen and men are determined to be not
similarly situated b"c of real differences &rather than stereotypes+, the la! is more
likely to be upheld
'. @hen talk about gender discrimination do not demand e-act equality !hen it
comes to real differences
.. La! that made men alone criminally liable for statutory rape valid under LP
clause Cichael C v Superior $ourt &')*'+ &?ehnquist+ &plurality+ &not
assigned but discussed briefly in class+
a. (i**erent treat;ent o* ;en > wo;en @usti*ie+ 09) State %ur%ose to
%re<ent ille#iti;ate teena#e %re#nan)& &and prohibiting statutory
rape the other !ay around poses no risk to teenage pregnancy+
9)
B. Since only !omen become pregnant, !omen bear the disproportionate
burden &emotional and psychological consequences+ of se-ual activity
). SOR H Rational 0asis
(. %rennan !" @hite < Carshall &dissenting+,$3 had gender neutral
alternatives available,no proof a gender neutral statute !ould be any
more difficult to enforce &uses intermediate scrutiny+
/. $ongress2 requirement that all men must register for the draft does #B1
violate A
th
3mendment LP clause ?ostker v =oldberg &')*'+ &?ehnquist+
&not assigned but discussed in class+
A. ?ehnquist &ma8ority+
i. CB?L deference necessary to $ongress !hen acting under
authority over national defense and military affairs,e-plicit
$onstitutional grant of authorityE
ii. no doubt an e3tre;el& important governmental ob8ective to
raise and support armies+
iii. AN( since B#LG men go into combat duty, rational to think
only combat troops !ould be needed,therefore !omen and
men not similarly situated
B. @hite !" %rennan &dissenting+,re8ected position that $ongress
concluded that all non-combat positions should be filled !" combat
ready personnel #B? had $ongress determined that all !omen !ho
!ould be needed could be filled !" volunteers &req2d fact finding on
issues+
C. Carshall !" %rennan &dissenting+,preparation for combat !ould be
8ust as effective registering men 3#I !omen and then drafting both
according to the need for combat or non-combat troopsE administrative
inconvenience has #L:L? been an adequate constitutional
8ustification for different treatment of men and !omen under
intermediate SB?
4. BUT ;a&0e t$ere are less -realF +i**eren)es t$an ori#inall& assu;e+ See
DS v :irginia &belo!+
<i. Mo+ern Stan+ar+s o* Se3OBase+ Classi*i)ations in EP Law
'. Dsing intermediate standard requires an e3)ee+in#l& %ersuasi<e @usti*i)ation
for a se--based classification Cississippi Dniversity for @omen v Kogan
&')*7+ &B2$onner+ &not in reading but mentioned in class+ Cale-S
challenged all !omen2s nursing school near his home, !anted to enroll
A. B2$onner &ma8ority+
i. State2s primary 8ustification !as compensates for
discrimination against !omen and therefore constitutes
33ction
ii. %D1 B2$onner notes,!omen had not been historically
discriminated against in the field of #D?SI#= 3#I by only
admitting men it permeates the stereotype that only !omen are
nurses
B. Po!ell !" ?ehnquist &dissented+,kills diversity in single-se-
education
i. %urger < %lackmun in separate dissents agreed basically
J5
.. $onstitution2s LP clause precludes :3 from reserving e-clusively to men the
unique educational opportunities :CI offers,:CI must admit !omen
Dnited States v :irginia &'))H+
a. C$allen#e+ %ro<ision1 :CI2s male-only education military academy
,goal of producing citi;en-soliders through an adversative or
doubting model of education, little privacy, boot-camp style !" little
privacy
0. -ELualF Su0stitute ()reate+ a*ter )$allen#e)1 program at Cary
%ald!in at a liberal arts college !" less \, less prestigious alumni, less
qualified teachers from C%, no living together or eating together, no
boot-camp style, but one that reinforces self-esteem &%asically, not
equal at all+
C. =insburg &ma8ority+
i. #either the goal of producing citi;en-soldiers #B? :CI2s
intense methodology is inherently unsuitable to !omen
ii. SOR,inter;e+iate w9 e3)ee+in#l& %ersuasi<e @usti*i)ation
(0ur+en o* t$e @usti*i)ation is +e;an+in# an+ it rests
entirel& on t$e State,;ust s$ow (') i;%ortant
#o<ern;ental o0@e)ts AN( (.) t$at t$e +is)ri;inator&
;eans e;%lo&e+ are su0stantiall& relate+ to t$e
a)$ie<e;ent o* t$ose o0@e)ti<es.)
'. State claims method requires men only,admitting
!omen !ould destroy II:L?SI1G
.. %D1 notes purpose is #B1 diversity b"c no LRD3L
program e-ists for !omen &not for co-educational
diversity+,really to afford CL# a unique opportunity
and squat for !omen
/. State also claims that single-se- education is essential,
more than substantially related to :CI2s ob8ective
4. %D1 circular argument
iii. Inherent differences may #B1 be used to 8ustify denying
rights to one se-E only okay to compensate !omen for
economic disabilities sufferedE (2)
i<. @omen2s admission !ould require accommodations &housing
< female physical training programs+,but $3# keep ideology
&!omen have successfully been integrated into federal military
academies+E
<. $annot say admitting !omen !ill make it !eak,not an
adequate 8ustification,
'. !hat !as said about the legal professionE medicineE
policeE etc
<i. =enerali;ations about the !ay !omen are b"c most !omen
are that !ay IBLS #B1 8ustify denying an opportunity to 3LL
!omen !hose talent and capacity place them outside the
average &:3 never asserted that :CIs education method suits
CBS1 men+
(. ?ehnquist &concurring in 8udgment+
i. disagrees !" the e-ceedingly persuasive 8ustification element
of the SB?E
J'
ii. agrees that the diversity here only benefits one se-,the
!omen2s alternative is #B1 equal by any e-tent so cannot say
the single-se- education in :3 truly benefits men and !omenE
iii. 1K31 is the LP violation &not the e-clusion of !omen but
failure to provide a comparable alternative for !omen+
E. Scalia &dissenting+
i. (oes not *ollow )orre)t SOR *or se3O0ase+ )lassi*i)ations,
correct intermediate standard of revie! IBLS #B1 require a
least restrictive means analysis %D1 only a SD%S13#1I3L
?LL31IB# bet!een end and means,not a perfect fitE
'. $orrect Ruestion,Is the e-clusion of !omen from
:CI substantially related to an important governmental
ob8ectiveF
.. Ges, b"c of the history of same se- education 3#I the
availability of same se- education for !omen &even if
not the same 1GPL of education+
ii. (enies $istor& > lon# stan+in# tra+itionR
iii. Improper hat $ourt disagrees !" court2s fact findingE
i<. o;en are not a +is)rete > insular ;inorit& +e;an+in#
su)$ a $i#$ le<el o* s)rutin& &consist of ma8ority of
electorate+E
<. Kolding has far reaching consequences beyond :CI,threatens
single-se- publicly funded education b"c claims if one
educational opportunity that is single-se- is unique it must open
up if any of the members of the opposite se- !ant to 8oin
'. states < localities !ill integrate to avoid la! suits
<ii. ELual Ri#$ts A;en+;ent (ERA),!ould have made gender discrimination per se
invalid ?eceived Senate approval Carch 77, ')(7
J. SEAUAL ORIENTATION (ISCRIMINATION
I. La! !hich imposes a broad, undifferentiated disability against homose-uals &!hich
reflects animus to!ard the class+ is irrational and violates LP ?omer v Lvans &'))H+
&6ennedy+ S-homose-ual citi;ens sought to en8oin enforcement of the 3mendment
&passed by referendum+
'. C$allen#e+ %ro<ision,no protected status &8udicial, legislative or e-ecutive+
for homose-ual, lesbian, or bise-ual citi;ens
.. 6ennedy &ma8ority+
A. la!s cannot create classes among citi;ens
0. SOR,rational re<iew
i. method,prohibiting all protection of homose-ualsE
ii. public purpose, freedom of association (private housing,
landlords should be able to rent to !ho !antE employment,
private employers should be able to employ !ho !ant, etc) and
conservation of resources
'. %D1 $ourt finds purpose of 3mendment,desire to
harm a politically unpopular group cannot be legitimate
gov2t interest
C. does not 8ust put homose-uals on equal footing !" everyone else but
purpose to bar la!s that prohibit discrimination based on se-ual
J7
orientation,!hich causes a s!eeping and comprehensive change in
legal status
i. for e-ample, prohibitions on discrimination in public 8obs
&e-ecutive decree+, college admissions, nullifies specific legal
protections in real estate, insurance, health < !elfare serves,
private educations and employment
ii. even denies homose-uals protections of broad protections for
all citi;ens
(. Lqual protection of the la! is not achieved through indiscriminate
imposition of inequalities,si;%l& a law +e)larin#C in #eneralC it
s$all 0e ;ore +i**i)ult *or one s%e)i*i) #rou% (0ase+ on one trait)
t$an *or all ot$ers to seeI ai+ *or; t$e #o<Bt is itsel* a +enial o*
eLual %rote)tion o* t$e laws in t$e ;ost literal sense
E. 3 S131L $3##B1 SB ILLC 3 $L3SS B0 PL?SB#
S1?3#=L?S 1B I1S L3@S
8. &#ote,$ourt does #B1 adopt the $olorado Supreme $ourt2s decision
that finds that 3mendment 7 infringed on fundamental rights of
homose-uals to engage in the political process,but may no! !"
La!rence+
/. Scalia !" ?ehnquist < 1homas &dissenting+
a. SOR H rational basisE there is a legitimate rational basis for
prohibiting special protection for homose-uals
i. %o!ers v Kard!ick,no special protection to homose-uals
and okay to criminali;e homose-ual conduct,if it is rational to
criminali;e the conduct it is rational to deny special favor and
protection to those !ho have a tendency to engage in the
conduct
ii. #ot invalid b"c it could have been more precise,nearly any
classification of people may be irrational in a particular case
even if generally the classification is rational
B. Legislation not to harm homose-uals %D1 attempt to preserve
traditional se-ual mores against the efforts of a politically po!erful
minority to revise those mores through use of the la!s
i. $olorado2s la! only denies preferential treatment
II. :acated and remanded a city charter provision that forbade special protection of
homose-uals by units of the city for consideration in light of ?omer Lquality
0oundation of =reater $incinnati &'))H+
'. Scalia !" ?ehnquist < 1homas &dissenting+,here the most local level !here
it is much easier to change by the political process &vs changing the State
$onstitution+ #ot the issue in ?omer,localities need to be allo!ed to deny
special protection to homose-uals if they !ish
III. Ka!aii found limiting marriage to !omen and men only violated the S131L
constitution prohibition against discrimination %aehr v Le!in &Ka! '))9+
?emanded !" order to analy;e restriction under strict scrutiny Lnded up creating
$I:IL unions instead
'. 3rgument for okay under LP,men and !omen equally prohibited from
marrying same se-E and marriage relationship grounded on union bt!n man
J9
and !oman and creation of family &!hereas in comparison to Loving,not
okay b"c race had nothing to do !" the marital relationship !here children do+
.. 3rgument for violation under LP,upholds that se- !" !omen is okay for
some people &men+ but not okay for others &!omen+ and visa versa Since
intermediate scrutiny !" regard to gender classifications is req2d and this
!ould fail under intermediate scrutiny it must be prohibited 3nalogue to
Loving,meant to preserve the polarities of race on !hich !hite supremacy
rested, the prohibition of homose-uality preserves the polarities of gender on
!hich the subordination of !omen rests 3lso, marriage as a fundamental
right
/. T$en w$at $a%%ene+ in !awaiiF
A. 0ound denial of homose-uals to marriage discrimination b"c no
discrimination on basis of se- !as in Ka!aii $onstitutionE
B. ?eferendum,amended state constitution to allo! legislature to limit
marriage to opposite se- couples &undid %aehr v Le!in+E
C. Passed la! to give most economic < legislative rights,civil unions
i<. !o;ose3ual Marria#e Issues
'. $ongress passed (e*ense o* Marria#e A)t,no state shall have to give affect
to any la! that gives same se- right to marry legal protection
A. Ioes the (e*ense o* Marria#e A)t <iolate t$e 8ull 8ait$ > Cre+it
Clause (Art. IVC Se) I)F
i. Ges, 3 State cannot so deem a class of persons a stranger to its
la!s ?omer &can the federal governmentF+E
'. 3lso, violate the priv and immunities clause of the 'J
th
,right of national citi;enship &basis in Saen;+ and
effectively undermine the concept of national
sovereignty If the priv of nat2l citi;enship do not
include marriage recognition in each state one may
travel or migrate to, !hen !hat does it apply toF
.. 3lso, 'J
th
LP violation to deny right of homose-uals to
full faith and credit for marriage 3#I not to deny
heterose-uals full faith and creditE b"c right to marriage
fundamental right should impose strict &or higher+
scrutinyE %D1 if marriage is defined traditionally B? if
Scalia2s narro! interpretation of fundamental right is
employed &like in Cichael K+, then !ill fall under
regular LP giving only rational basis revie!
ii. #o, marriage has traditionally been a state responsibilityE
La!rence v 1e-as,court goes out of its !ay to say does not
affect marriage la!s #ot a fundamental right, 3#I rational
basis to protect the family and the sacrament of marriage
.. Ver;ont,civil unions of same se- couples grounded entirely on :ermont
$onstitution &common benefit clause+
/. PLUS one ;ore )i<il union state,total no! is J
JJ
4. Re)ent Massa)$usetts )ase,Cassachusetts constitution requires that
homose-uals could #B1 be denied the marriage right =oodridge v Cass
Iept Kealth,( same se- couples challenged refusal to be married
A. Dsed La!rence v 1e-as and other DS precedent %D1 decided under
S131L $onstitutionE
B. Cassachusetts did not have la! marriage CDS1 be man and !oman
%D1 clear historical evidence that !as the understanding of the la!
C. Carshall &A to J+
i. Relies a lot on Lo<in# <. Vir#inia,detailed recitation of
benefits of marriage, therefore understandable that DS
SDP?LCL court made marriage a fundamental rightE
'. %D1 Cass does not make marriage a fundamental right
&b"c doesn2t have to,can get to result under rational
basis revie!+E
ii. Uses Rational Basis Re<iew &b"c marriage is not a
fundamental right in Cass+E
iii. Massa)$usetts +e*en+s $eterose3ual ;arria#e ONL= on
'. marital relationship is desired setting for
procreation"protection of childrenE
.. optimal setting for child rearingE
/. preserves scarce state resources,b"c same se- couple2s
more financially dependent and don2t need help
i<. Court anal&?e+ EAC! @usti*i)ationMALL irrational
'. heterose-ual couples enter relationships #B1 to have
childrenE capacity to have children #B1 required to be
married in CassachusettsE
.. allo!s gay couples to adoptE don2t deny rights to adopt
based on a single trait,adoption la! does not
recogni;e optimal setting for child rearingE
/. Same se- couples more financial dependent and don2t
need ta- benefits,no basis at all,irrational
<. CDS1 e-tend civil marriage to same se- couplesE
<i. ?LCLIG,issued declaratory 8udgmentE declined to issue
marriage licensesE legislature has H months to respond &civil
unions #B1 an option+E 3#I takes 7 years to pass an
amendment
(. Iissenters
i. court not protecting right %D1 creating one &not fundamental
right to marry for homose-uals+E
ii. deeply rooted in history and natural procreation essential
8ustification of marriage
E. B#L concurred on equal protection grounds
". ISSUES
A. Suppose Cass legislature conforms 3#I suppose $onnecticut
residents come across the line can Cass IL#G other state residents
right to marry in CassF &Priv < Immunities of 'JthE not if
fundamental rightE Lqual Protection &F++
B. @hat about full faith < creditF
JA
). En*or)e;ent,!hat if legislature passes and then amendment in 7
yearsF LP !" those !ho have marriage licenses &from the interim+ and
those !ho don2tF
I. 8un+a;ental Ri#$ts,a heightened standard !ill be invoked !here the nature of the
interests affected is fundamental &If a fundamental right is si#ni*i)antl& 0ur+ene+ then
triggers strict scrutiny %D1 court has used different language leaving the e-act SB? in the
air %D1 if the la! does not significantly burden &deter, penali;e, or other!ise significantly
burden+ the e-ercise of the fundamental right, then the $ourt !ill use rational basis revie!+
I. $ourt used strict scrutiny to strike do!n la! that provided se-ual sterili;ation of
persons convicted more than t!ice of felonies involving moral turpitude Skinner v
Bklahoma e- rel @illiamson &')J7+
'. Iealing !" basic civil rights of man,marriage and procreation are
fundamental to the very e-istence and survival of the raceE touches an
important area of human rights
.. In such cases, strict scrutiny of the classifications is essential
ii. Ri#$t o* Interstate Mi#ration
'. ?ight to interstate travel is a fundamental right,uses stri)ter s)rutin& o*
w$et$er it %ro;otes a )o;%ellin# state interest Shapiro v 1hompson
&%rennan+ &')H)+
A. La! O denies !elfare assistance to residents of the State !ho have not
resided !"in the district for at least one year immediately preceding
their application
B. %rennan &ma8ority+
i. $reating !aiting-period creates 7 classes of needy families,
residents of over a yearE and residents of under a yearE
ii. Iistinction not okay to deny the later food, shelter, and other
necessities of life
iii. ?ight to interstate travel grounded in '+ commerce clause, 7+
privileges < immunities 3rt J, Sec 7, 9+ privileges <
immunities of 'J
th
amendment, < J+ due process clause of A
th
<
'J
th
under liberty
i<. State protects under need to preserve resources,people !ho
receive !elfare !"in first year likely to become continued
burdens
<. $ourt agrees denial of !elfare !"in first year @ILL discourage
poor families from migrating there %D1 purpose of inhibiting
migration by needy persons is a constitutionally
ICPL?CISS3%LL purpose
<i. 3nd not narro!ly tailored enough to dissuade"punish B#LG
those !ho migrated there to receive higher benefits,but
punishes all poor !ho migrate to the State no matter !hat the
reason
'. %D1 even if it !ere narro!ly tailored,still suspect
<ii. $annot be 8ustified on the former contribution,b"c ho! do
long term !elfare recipients contribute more than those outside
the stateF &irrational+
'. 3#I cannot apportion State services on amount paid
into by ta-es
JH
<iii. =ESC State $as le#iti;ate %ur%ose o* %reser<in# *inan)ial
resour)es BUT )annot +o t$at 0& +is)ri;inatin# 0etween
)lasses o* )iti?ens.
i3. SB? Ostricter scrutiny &but !ould also fail under rational basis+
3. BUT reser<es +e)ision on waitin# %erio+s *orMvoting,
tuition free education, to obtain a license to practice a
profession, to hunt or fish, and so on
C. Karlan &dissenting+
i. does not like the compelling interest req2d added to
traditional rational basis revie! for LPE
ii. enlarging the list to include fundamental rightsE unnecessary b"c
can be dealt !" under the Iue Process $lause aloneE
iii. making $ourt a super-legislature
.. State2s statutory scheme distributing benefits from natural resources &oil+
based on length of each citi;en2s residence struck do!n under LP,violated
ne!er citi;ens LP rights O USES Rational Basis re<iew Xobel v @illiams
&')*7+
A. %urger &Ca8ority+
i. La! creates fi-ed permanent distinctions based on duration of
living in State &b"c amount of \ received pegged to Y of years
lived there forever,no !aiting period and then eligible+
ii. 1herefore, !ould fail even rationality test
iii. State 8ustifications #B1 rationally related to classification
bet!een ne!er residents and those later residents
'. creating financial incentive to maintain 3laskan
residenceE
.. encourage prudent management of Permanent 0und
i<. State 8ustification 9+ to re!ard citi;ens for past contributions is
illegitimate state purpose,State $3##B1 apportion rights to
services based on residency
<. SB? O rational basis
B. %renann !" Carshall, %lackmun < Po!ell,concurred on right to
travel
C. B2$onner,concurred based on Privileges < Immunities,residents
not source of evil that discrimination bore substantial relationship to
the amount people might have contributed to the state
(. ?ehnquist,dissented b"c state interest in recogni;ing past
contributions satisfied rational basis revie! &b"c does not impede right
to travel at all, still get money+
/. 8un+a;ental Ri#$ts Bran)$ o* EP is in *lu3,court held that preference in
civil serve employment by #G to solely resident veterans !ho lived in the
state at time entered military served violated constitutional rights of veterans
!ho lived outside the state 3ttorney =eneral of #G v Soto-Lope; &plurality+
&')*H+
A. %rennan !" Carshall, %lackmun < Po!ell,violated right to migrate
and state had not met heavy burden of strict scrutiny &pursuing a
J(
compelling state interest !hich does not impinge unnecessarily on
constitutionally protected interests+E
B. %urger !" @hite,concurred on rational basis Xobel precedent
C. B2$onner !" ?ehnquist < Stevens,dissented,heightened scrutiny
under right to migrate under LP is inappropriate
(. NN#ote,A for Xobel rational basis
4. LooI at w$at is 0ein# +enie+ +urin# t$e waitin# %erio+,!aiting periods
may be sustained in less fundamental rights type areas
A. Core likely to be struck do!n if not essentialM
i. $ourt upheld ' year !aiting period for +i<or)e under Shapiro
in Io!a b"c long tradition of state control 3#I not necessity
Sosna v Io!a &')(A+
ii. Dpheld ' year !aiting period for inOstate tuition 0ene*its
Starns v Calkerson &')('+
B. Less likely to be struck do!n if essential
i. Struck do!n '-year !aiting period for nonOe;er#en)&
$os%ital or ;e+i)al )are at public e-pense under Shapiro
Cemorial Kospital v Caricopa $ounty &')(9+ &Carshall+,
may not deter or penali;e the constitutional right to travel 3#I
medical care is a basic necessity of life as much as !elfare
assistance
ii. ?equirement that person be resident of state for a year and of
the county for 9 months before allowe+ to <ote struck do!n
under LP Iunn v %lumstein &')(7+ &Carshall+,strict
scrutiny b"c fundamental right Legitimate interest to make
sure all voters residents &purity of the ballot and prevention of
fraud+,but e-cessive 95 days !ould have been ample but '
year or 9 months too long
'. %D1 upheld A5-day durational voting residency
requirement Carston v Le!is &')(9+,reasonable
time to make accurate voting lists"$onstitution not so
rigid as to require only 95 days
a Carshall dissented saying 95 days enough
". LooI at t$e T=PE o* resi+en)& reLB+1 Bona *i+e <s. (urational
a. (uration Resi+en)& ReLB+,must be in State for certain time period
in order to be eligible for certain benefit
0. Bona *i+e Continuin# Resi+en)& ReLB+,must be actual resident at
the time
i. 0or e-ample, okay to require city employee to live in city
Cc$arthy v Philadelphia $ivil Service $omm2n &')(H+ &per
curiam+ rational for city to require employees to be residents of
the city
J*
iii. Ri#$t to E+u)ation (eLual s%en+in# on) &#B1 in reading but discussed in class+
'. $3 Supreme $ourt declared $32s system of educational finance under $32s
constitution required same amount of \ on each pupil throughout the state
Serrano v Priest &$3+
.. E+u)ation NOT a *un+a;ental ri#$t w$i)$ reLuires stri)t s)rutin& b"c not
directly or indirectly implied in $onstitution,therefore State educational
spending schemes B#LG sub8ect to rational basis LP analysis San 3ntonio
Independent School Iist v ?odrigue; &')(9+
A. %ro!n said education important, %D1 not a fundamental right
B. ?ational for State to put as much \ into schools as communities put in
C. $onstitution leaves people !here it finds them
(. Carshall !" Iouglas &dissenting+,if close to a fundamental right
should get some higher standard of revie! than rational basis
i<. Pri<ile#es > I;;unities
'. Statute limiting ma-imum !elfare benefits for first year of residency to old
state struck do!n as violates privileges and immunities clause of 'J
th
&not
grounded in Shapiro+ Saen; v ?oe &')))+
A. Stevens &Ca8ority+
i. #ot reasonable to think more \"compared !" increase in cost of
living !ould induce anyone to move to $3 &cannot 8ustify
!aiting period on deterring !elfare receipts looking for more \+
&PLDS $3 says not !hy enacted legislation,claims 0IS$3L
8ustification+E
ii. Iiscrimination against poor is #B1 a legitimate state interest
&Shapiro+E
iii. 1here is a $onstitutional right to travel from one state to
another ?ight to travel CL3#S
'. right to go from one place to another &to cross state
lines+E
.. right of a non-resident to all of the privileges and
immunities &3rt I:, 47+ of that State,to be treated as a
!elcome :IS31B?E
/. right to travel of the ne!ly arrived citi;en to the same
privileges and immunities &of the 'J
th
+ en8oyed by other
citi;ens &at issue KL?L+
a protected as citi;en of Dnited States
i<. $annot allo! for degrees of citi;enship based on length of
residence O NO SUBOCLASSES O8 CITIKENS &Xobel+E
<. $ongress cannot make an unconstitutional provision
constitutional &Social Security 3ct approval does not matter+
<i. If benefit is Portable and threat may take advantage, then bona
fide req2ds are okay but here not portable so no threat (2)
<ii. 1he States IB not have 3#G right to select their citi;ens b"c
the 'J
th
vests right in citi;ens to choose the state !here they
reside
<iii. %D1 States maintain right to inquire into bona-fideness
before giving benefits &but don2t go into it b"c bona fide issue
not before the court+
J)
B. ?ehnquist !" 1homas &dissenting+
i. 0reat$es new li*e into -+oor;atF %ri<. > i;;unities )lause
o* t$e '4
t$
Scannot ground right in dead provisionE
ii. statute survives rational basis revie!E
iii. right to travel has nothing to do !" right to become a citi;en of
another state,!hy connect the t!oFE
i<. $ourt recogni;es State2s right to retain ability to determine
bona fides but does not say KB@ can !"in holding
C. 1homas !" ?ehnquist &dissenting+,'J
th
priv < immunities not meant
to have any meaning historically 3#I Slaughter-Kouse cases sapped it
any meaning
.. In )lass Pro0le;,suppose $3 enacted la! la!fully resident aliens can get
benefits after ' year residence and some resident aliens filed suit Is the la!
unconstitutional under Saen; v ?oeF Bther $onstitutional argumentsF
A. Ioes priv < immunities of citi;ens apply to la!fully resident aliensF
i. probably not
B. LP violation,' class aliens ne! to state vs ' class citi;ens ne! to
state
/. (i+ Saen? )reate a new )ate#or&,once a state determines citi;en is bona
fide resident then can make #B distinctions based on length of residenceF
$onfusion of precedentsF
IV. 8REE(OM O8 EAPRESSION
A. RATIONALES 8OR 8REE SPEEC!
i. MarIet Pla)e Mo+el,!ords should be left to the marketplace freely to have only
1ruth survive &Social Iar!inist feel+
'. Kolmes2 dissent in 3brams
.. $ritique
a. Internal )ontra+i)tion,theory2s goal is truth yet posits !e can never
kno! truth so !e must keep looking &cannot determine one thing is
truth and suspend the rest ever+
0. MarIet 8ailure,especially no! there is not equal access to the
market of ideas 1he market place of ideas is distorted by the
economic reality that dissenting or minority vie!points do not have a
fair chance &especially !hen 7 or 9 companies o!n all the media
conglomerates+
i. Lspecially if there is no right of e-pression or access &%arron+
). Sel*O*ul*illin#,the dominant idea is the truthful one &b"c !on+
(. @hat about fraudulent !ordsF 3re those okay b"c !ill lose in the
quest for truthF 0or e-ample, ad that cigarette smoking does not cause
cancer
i. Problem requires people to use their rational capacities to
eliminate untruthful,assumes people 3?L rational
ii. Citi?enOParti)i%ant Mo+el
'. Political discussion is a political duty @hitney
.. Ceikle8ohn,'
st
3mendment grounded on principle of self-gov2t and
necessities of self-gov2t require freedom speech 1o decide on a political
issue, citi;ens must be fully informed,nee+ a0solute %rote)tion o* -%u0li)F
A5
s%ee)$ &note,private speech not concerning public affairs or political
criticism deemed lo!er species of speech !" less protection+
/. $entral meaning of '
st
3mendment !as to encourage the vigorous, robust
discussion of public issues and public officials #e! Gork 1imes v Sullivan
&')HJ+
4. 0irst 3mendment protection B#LG to PBLI1I$3L speech &%ork+,benefits
of non-political speech are indistinguishable from the functions or benefits of
all other human activity &!hich can be prohibited+ %D1 B#LG the discovery
and spread of political truth that distinguishes speech from any other form of
human activity !hich is the principle that founds the basis for the protection
A. $ritique,many 3$1IB#S lend political understanding as !ell #on-
speech activities could aid attainment of kno!ledge of political truth as
much as political discourse therefore %ork2s argument CDS1 be
re8ected b"c results in the $B#1L#1 of speech protected being a null
set
0. AN( !hat about artF musicF and their political messagesF
iii. In+i<i+ual Li0ert& Mo+el
'. 0reedom of e-pression serves individual values as !ell as societal goal--
Liberty is valued as a means and an end @hitney v $3
.. Liberty to develop one2s faculties to %ro;ote in+i<i+ual autono;& and to
*urt$er sel*O+eter;ination.
/. 0ree speech protects an arena of individual liberty from certain types of gov2t
restrictions,not as a means of a collective good BUT 0e9 t$e <alue o* s%ee)$
)on+u)t to t$e in+i<i+ual
B. PRACTICAL 8REE SPEEC! (OCTRINES GENERALL=
i. Clear > Present (an#er
'. CritiLues
A. 8ust a !eighing of values,free speech is oneE
B. to permit a State to cut of speech as soon as it becomes close to being
effective is illogical and ridiculousE protection of only abstract speech
is no protection at allE
C. %alancing becomes intert!ined !" the predispositions of those doing
the balancing &depends on your concept of danger+
ii. ContentOBase+ > ContentONeutral
'. $ontent-based require strict scrutiny &no particular type of speech, or no
vie!point of a particular type of speech+E
.. $ontent-neutral requires significant gov2t interest < narro!ly tailored &not
quite strict scrutiny+ &for time, place, manner restrictions+ See belo!
iii. Masse Test
'. Bne cannot counsel another to resist the la!,outla!s II?L$1 advocacy of
resistance to the la! &no time piece+ &rev2d on appeal %D1 theory remains+
i<. Balan)in# Tests
<. Ti;in#,!hether prohibits %L0B?L or 301L? speech has been disseminated
<i. Cate#ori)al A%%roa)$,different types of speech deserve more protection than
othersE some deserve XL?B protection
A'
<ii. A0solutist
'. / %lack,3LL speech cannot be touched Cakes a distinction bet!een
SPLL$K and 3$1IB# and only !hen something is 3$1IB# can it be
prohibited
A. $ongress shall make no la!M,literal interpretation
.. %ut then !hat is speech and !hat is actionF
A. %urning draft card,speech or actionF &B2%rien+
C. CLEAR > PRESENT (ANGER (OCTRINE
i. See+s o* )lear an+ %resent +an#er1 3ffirmed convictions under espionage act for
distributing leaflets calling draft unconstitutional Schneck v Dnited States &')')+ >-
mailed leaflets to draft-age men stating the draft violated the '9
th
3mendment
Prosecuted under Lspionage 3ct b"c leaflets deemed to encourage obstruction to the
draft
'. In ordinary times, >s actions !ould have been protected under '
st
E
.. %D1 the character of every act depends upon the circumstances in !hich done
,t$e ;ost strin#ent %rote)tion o* *ree s%ee)$ woul+ not %rote)t a ;an in
8ALSEL= s$outin# *ire in a t$eatre an+ )ausin# a %ani)E
/. '
st
3mendment IBLS #B1 protect !ords that may cause force
4. Stan+ar+1 3re the !ords used in such circumstances as are such a nature as
to create a clear and present danger that they !ill bring about the substantial
evils that $ongress has a right to preventF
". If found that recruiting serve !ere obstructed, liability for !ords may be
enforced (BUT was t$at %ro<e+2).
II. Publication #B1 protected by '
st
3mendment 3brams v Dnited States &')')+ >s
published < distributed pamphlets attacking 3merican e-peditionary force to
challenge $ommunist ?evolution in ?ussiaE convicted under Lspionage 3ct for
inten+in# to in)iteC %ro<oIe or en)oura#e resistance to the !ar effort and
)ons%irin# to ur#eC in)ite or a+<o)ate curtailment of production of !ar materials
'. Kolmes !" %randeis &dissenting+ &A((S sense o* e;er#en)&+
A. =ov2t may prohibit speech that produces B? is intended to produce
imminent danger that !ill bring about evilsE
B. %D1 here there is no present danger,no one can assume the
production of a silly leaflet !ould hinder gov2t arms
C. the principle of the right to free speech is al!ays the same
()ontra+i)tor& to S)$ne)I2)
+. Constitution e;0o+ies ;arIet%la)e t$eor& @usti*i)ation o* *ree
s%ee)$,the best test of truth is the po!er of the though to get itself
accepted in the competition of the market
E. Cust be vigilant against attempts to check the e-pression of opinions
that loath and believe to be fraught !" death UNLESS so i;;inentl&
t$reaten i;;e+iate inter*eren)e w9 t$e law*ul an+ %ressin#
%ur%oses o* t$e law t$at an i;;e+iate )$e)I is reLB+ to sa<e t$e
)ountr&
i. B#LG emergency e-ception to '
st
3mendment
A7
III. 3ffirmed conviction for publication of leaflet"manifesto under anarchy statute
=itlo! v #e! Gork &')7A+,> indicted under #G2s criminal anarchy statute for
publishing a radical manifesto that advocated mass strikes by the proletariat Statute
prohibited publishing material a+<o)atin# or tea)$in# t$e +ut&C ne)essit&C or
%ro%riet& o* o<ert$rowin# or o<erturnin# or#ani?e+ #o<Bt 0& *or)e or <iolen)e
'. Sanford &Ca8ority+
A. &Liberal+ Incorporated '
st
3mendment freedom of speech and the press
to the States as fundamental personal rights and liberties under the 'J
th

3mendmentE
B. &illiberal+ BUT #reat +e*eren)e to t$e State le#islature in
determining !hat speech are so evil can be subscribed 0& t$e %oli)e
%owerE
C. @hen the legislative body has determined generally, that utterances of
a certain kind involved such danger of substantive evil that they may
be punished, the R !hether any SPL$I0I$ utterance coming !"in the
prohibited class is #B1 open for consideration
i. practical effect,no '
st
3mendment role to courts
.. Kolmes !" %randeis &dissenting+ &A((S ti;e %ie)e+
A. Should be reversedE
B. 3pplying the clear < present danger test it is clear that there !as no
attempt to overthro! the gov2t by forceE
C. every idea is an incitement,only distinction is the enthusiasm of the
speakerE
(. I0 the manifesto !as laid out as an attempt to induce an uprising
against gov2t 31 B#$L and not at some indefinite future time, the R
!ould be different
IV. 3ffirmed conviction of > !ho attended $ommunist Party $onvention under criminal
syndicalism statute @hitney v $alifornia &')7(+ &not assigned but discussed in
class+,> attended communist party conventionE did not favor violence as a means of
securing political change &really a freedom of association case %D1 that la! more
developed later+
'. / %randeis !" Kolmes &concurring+
a. Settle+ t$at '4
t$
A;en+;ent (ue Pro)ess a%%lies to ;atters o*
su0stanti<e law as well as %ro)e+ureR
0. Goes into rationale *or *ree s%ee)$
i. market place,good !ill prevail over the arbitraryE
ii. Lndorses liberty model of free speech,the framers valued
liberty %B1K as an end and as a meansE freedom to speck as
you think part of libertyE
iii. citi;en participant model,free speech indispensable to spread
and discovery of political truthE
i<. Sa*et& <al<e ;o+el (to a<oi+ re<olution),fear %?LLIS
repressionE repression breeds hatE hate menaces stable gov2tE
can only avoid all that by freedom to discuss openly grievances
< remedies
C. Iistinguishes bet!een 3I:B$3$G &okay+ and I#$I1LCL#1 &not
okay if incites unla!ful activity and !ould be immediately acted
upon+E
A9
(. 3#I must be probability of SL?IBDS in8ury to the state
E. $oncurred b"c 8ury could have decided these things,don2t kno! b"c
not brought up belo!
V. Iennis v DS &')A'+ &did not read but e-plained in class as background+,>s
convicted under Smith 3ct for advocacy"teaching the forcible overthro! of gov2t >s
taught from a te-t !ritten by Car- and Lenin that has forcible overthro! as a last
resort =ov2t said that !as enough 7
nd
$ir asks ') @hat is the gravity of the evil <
.) to discount the gravity by its improbability to 8ustify infringement on speech
Supreme $ourt claims to use that formula &and that is the @hitney formula+
'. A%%l&in# Bran+ies9!ol;es test *ro; $itne& +oes not %ro<i+e ;ore '
st

A;en+;ent %rote)tion,finds that >s intended to overthro! gov2t as
speedily as the circumstances !ould permit < that !as imminent enough
under @hitney
.. NOTE1 #ot the same formulasM
A. %randeis opinion focused on ICCI#L#$LE
B. Kand2s test does not use 1ICL but only uses %ro0a0ilit& (no
-%resentF in t$e -)lear an+ %resent +an#erF test)
VI. / Karlan used savings construction to read Smith 3ct as prohibiting only advocacy
directed as promoting unla!ful action &and not advocacy of abstract doctrine+ Gates
v DS &')A(+ &did not read but discussed in class as background+
'. 1echnically only limits Smith 3ct, but clearly limits holding of Iennis
<ii. T$e Mo+ern (o)trine1 Bran+en0ur# <. O$io
'. Mo+ern Test H a State may not permit advocacy of the use of force or la!
violation LU$LP1 !here such advocacy is &'+ directed to inciting or
producing imminent la!less action 3#I &7+ is likely to incite or produce such
&imminent+ actions %randenburg v Bhio &')H)+ &per curiam+,666 revenge
statement
a. Per )uria; H as if the principle is already so engrained there is no
question Bther 8ustificationsM
i. no one !ants to put name on the decisionE
ii. opinion intellectually dishonest,don2t !ant to reverse Iennis
but no logical !ay Iennis still has an effect after %randenburgE
iii. may not have been a ma8ority to overrule Iennis
B. #otes that @hitney has been discredited,but ma8ority does not
mention clear and present danger doctrine at all
). Pra)ti)all&,invalidates criminal syndicalism la!s
(. %lack &concurring+ &'
st
3mendment absolutist+,clear and present
danger has no place in '
st
3mendment 8urisprudence /oins opinion in
understanding that it does not use clear and present dangerE
E. Iouglass &concurring+
i. re8ects clear and present danger doctrine b"c only serves to
invalidate speechE
ii. line bet!een !hat can be controlled and !hat cannot is line
bet!een ideas &conduct !" purpose to communicate is speech+
and overt actsE
AJ
iii. apart from the times !hen ideas"speech is brigaded !" action
speech &falsely yelling fire in a theatre+ cannot be limited
.. Dnder %randenburg, publisher of a manual of ho! to be a hitman and kill
people !here stipulated intended to attract < assist criminals commit crimes
3#I had kno!ledge book !ould be used by criminals 3#I that book
actually assisted 1KIS murder #B1 protected under '
st
3mendment ?ice v
Paladin Lnterprises PKitman $aseQ&J
th
$ir+,>-publisher sued for !rongful
death resulting from man using book to kill peopleE alleged book aided and
abetted the murders
A. Proc Kistory. Prevailed in Iist $ourt b"c #B1 imminent enough,
publisher could not kno! !ould immediately
B. '
st
3mendment protects teaching or advocacy %D1 does not protect
concrete preparation to aid and abet criminals &step by step, so
comprehensive and detailed as if instructor !ere present in the room+E
C. speech of this type IBLS #B1 resemble mere abstract teaching of
the moral propriety or even moral necessity for a resort to force and
violence %D1 instead the manual amounted to the advocacy and
teaching of concrete action
(. ?esult &t!o !ays to look at it+
i. detailed teaching O in incitement &even though no imminence+
&ho! court looks at it+
ii. #L@ unprotected category of speech for detailed instructions
to aid and abet crimes &#B1 ho! court looks at it,claims to
apply %randenburg+
/. $onviction of anti-!ar demonstrator for saying !e2ll take the fucking street
later overturned,nothing more than advocacy of illegal action at some
indefinite future time Kess v Indiana &')(9+
4. $onsider the follo!ing under %randenberg
A. bomb,maybe depends on ho! available kno!ledgeE probably not if
scientific kno!ledgeE step by stepFE speech or actionF &hardest case+
B. secret proving enemy !" troop movements,#B, not protectedE
C. 3 speech attacking the ta- system as theft and e-plaining ho! to evade
ta-es illegally,probably protected
(. T!E STRUCTURE O8 SPEEC! REGULATION1 CONTENTOBASE( > CONTENTONEUTRAL
i. Content Base+ <s. Content Neutral
'. Content Base+ H gov2t must establish that the speech falls into a category of
unprotected or lo! value speech B? the regulation is sub8ect to strict scrutiny
A. :ie!-point %ased Legislation is even CB?L suspect &0or e-ample,
allo!s speech %D1 not from ?epublicans or pro-lifers+
B. Prohibited picketing outside of school LU$LP1 teacher2s union,
struck do!n b"c vie!-point based Police Iepartment v Cosely
&')(7+
i. 1he gov2t may not great the use of a forum to people !hose
vie!s it finds acceptable but deny use to those !ishing to
e-press else favored vie!s &#B vie!point based+
ii. 3#I it may not select issues !orthy of debate &#B content
based+
AA
iii. Anal&sis un+er stri)t s)rutin&C important government interest
O sanctity"no disruption of education %D1 prohibition must be
narro!ly tailored than to purpose
'. #ot narro!ly tailored to purpose b"c court re8ected
claim that peaceful labor picketing !ould be less
disruptive than peaceful picketing of another type &In
fact, picketing of teachers could be CB?L disruptive
and against purpose+
C. #G Son of Sam la! requiring all 6s !" convicted person for depiction
of crime to turn over income to an escro! fund for victim to be
content-based statute,invalid Simon < Shuster v Cembers of the
#G State $rime :ictims %oard &'))'+
i. $ontent-based %"$ singles out income derived from e-pressive
activity for a burden the State places on #B B1KL? I#$BCL,
and it is directed at !orks !"in a specific conte-tE
ii. Strict Scrutiny analysis,
'. )$e)I compelling gov2t interest O criminal cannot benfit
from crimeE
.. NOT narro!ly tailored b"c only books &not 8e!elry
thieves+ PLDS over-inclusive to apply to books such as
1horeau2s $ivil Iisobedience, Calcolm U, etc not
covered
iii. Problem,incidental effect of driving certain ideas or
vie!points from the marketplace b"c la! financially disincents
specific types of !orks
i<. 6ennedy &concurring+,fully protected category of speech !hy
not say per se protected b"c directed to SPLL$K alone
.. Content Neutral &ti;eC %la)eC ;anner-type regulations+ O intermediate
standard of revie!,it is su**i)ient t$at t$e law is narrowl& tailore+ to
ser<e a si#ni*i)ant or su0stantial #o<ern;ent interest AN( lea<e o%en
a;%le alternati<e )$annels o* )o;;uni)ation &Least restrictive means
analysis not req2d+
A. Sometimes elevated I0 an incidental restriction either has a highly
disproportionate impact on free e-pression B? directly penali;es
e-pressive activity,then may get heightened &strict+ scrutiny
B. 1ime, place and manner regulations may be necessary to further
significant governmental interest, and are permitted but must be
narro!ly tailored
C. 3sk, does the nature of the place and the place2s normal activities
dictate the kinds of regulations of time, place and manner that are
reasonable to 1K31 placeF Is the manner of e-pression
appropriate"compatible !" the normal activities of the public placeF
/. Se)on+ar& E**e)ts (o)trine &making content-based, content-neutral+
A. $ourt upheld city ordinance prohibiting adult motion picture theatres
from locating !"in '555 feet from any residential, church, park or
AH
school &content-based by type of movies allo!ed to sho!+ ?enton v
Playtime 1heatres &')*H+
i. ?ehnquist &ma8ority+
'. Secondary Lffects Ioctrine. /ustified %"$ regulation
prohibited a particular 6I#I of speech %D1 the
purpose of the regulation is D#?LL31LI to the
speechE
.. purpose O deal !" secondary effects of such theatres in
the surround community such as crime < decreased
property values
/. therefore, claims ordinance is content-neutral
ii. CritiLue,escape hatch to devoid '
st
amendment of meaning,
8ust say prohibiting b"c of resulting action and can regulate
underlying speech
B. Secondary effects doctrine failed,ordinance prohibiting any sign that
!ould bring a foreign gov2t into public disrepute !"in A55 feet of an
embassy !as struck do!n %oos v %arry &')**+
i. 3rgument made O content-neutral b"c secondary effect is int2l
la! obligation to shield diplomats from speech that offends
their dignity
ii. $ourt found ordinance content-based b"c signs critical to
foreign gov2ts are not allo!ed &!hile positive signs are
allo!ed+E
iii. ?L/L$1LI secondary effects %"$ regulations that focus on the
II?L$1 impact of the speech on the audience &here offense to
foreign diplomats+ are not secondary %D1 primary effects
E. T!E (OCTRINE O8 PRIOR RESTRAINT
i. T$eor&,original understanding of '
st
3mendment !as limited to prohibition of
P?IB? restraints &before disseminated+ rather than subsequent punishment &penalties
for speech already disseminated+ $ourt has re8ected that narro! reading %D1 does
afford CB?L protection against prior restraints AlsoC rationale prior restraints
impede market-place modelE denies citi;en e-posureE and individual cannot learn
from speech never spoken Suppression by a stroke of a pen is more likely than
suppression by the criminal process
ii. An& %rior restraint on e3%ression )o;es to t$e Court w9 a $ea<& %resu;%tion
a#ainst its )onstitutional <ali+it&.
III. Statute that allo!s prior restraint on press infringement of the liberty of the press
unconstitutional under '
st
3mendment #ear v Cinnesota &')9'+ &first prior restraint
case+,ne!spaper attacked mayor < chief of police saying a /e!ish gangster !as
in control of gambling, bootlegging and racketeering in CinneapolisE
'. La! at issue. #uisance for publishing malicious, scandalous and defamatory
ne!spaper La! provide that if could sho! !hat !as published !as true &or
that their !as a good faith belief for truth+, then could publish
A. Kughes &Ca8ority+
i. $annot impose prior restraints,if publish libel la!s still apply
but does not make imposing P?IB? restraints okay &prior
restraints have nothing to do !" truth+E
ii. Bnly serves to suppress publicationsE
A(
iii. D#-P?B1L$1LI classes of speech may prior restrain,gov2t
may prevent obstruction to its recruiting service or publication
of the sailing dates of transports or troopsE obscene
publicationsE incitements against violence or overthro! of
gov2t
'. #B@ violence O %randenburg
.. 3IILI ne! un-protected class of speech O gag order
for the press !hile trial ongoing to protect the
administration of 8ustice Pimpartial 8uryQ =ag orders
are presumptively invalid b"c prior restraints %D1 if
!"out gag order there !ould be a clear and present
danger to the administration of 8ustice &I0 even
sequestration !ould not help+, then constitutional
i<. statute #B1 save by fact a hearing before the in8unction issues
&step to have any publisher come forth and prove everything2s
truth,the road to gov2t censorship+
B. %utler plus 9 &dissenting+,not really a prior restraint,only punishes
once published and circulated and then prohibits from further slander
3#I libel la!s are 3-B63G
i<. (istin)tions 0etween %rior restraints an+ %unis$;ent not so )lear. L-cessive
punishment of speech chills freedom of e-pression as much as &or even more than+
acquiring a permit in advance &Professor Lmerson+
<. $at is a %rior restraint2 Court $as use+ %rior restraint lan#ua#e inM
'. to strike do!n gross receipts ta- on ne!spapers &=ros8ean v 3merican Press+
&')9H+E
.. to strike do!n controls on mailing privileges &Lamont v Postmaster =eneral+
&')HA+E
/. 3nything that either directly or indirectly causes e-cessive caution of the
speaker before an adequate 8udicial determination has been made on !hether
the speech is protected
<i. Ju+i)ial <s. A+;inistrati<e Restraints,presumption against %B1K
8. T!E 8IRST AMEN(MENT OVERBREAT! (OCTRINE,!hen a la! prohibits protected
e-pression as @LLL as unprotected e-pression
i. O<er0reat$ <s. Stan+in#
'. 3ssumed overbreath doctrine is departure from generally accepted standing
principles !hich posit that one may #B1 assert the $onstitutional rights of
another
.. 3llo!ed individual !hose conduct might !ell be prohibited by a property and
narro!ly dra!n statute to ob8ect to an e-isting statute on the basis of 0irst
3mendment overbreath,b"c the la! applied to another !ho conduct !ould
be protected 1hornhill v 3labama &')J5+
/. Rationale,b"c la!s that are overbroad chill and punish protected speechE
strong medicine and more than regular standing la!
A*
ii. O<er0reat$ <s. Va#ueness
'. 1here is overlap but not necessarily
.. $ourt !ill often sho! vagueness by citing possible e-amples of an
unconstitutionally broad application of the statute2s language
/. %B1K lead to danger of selective enforcement,
A. vague,b"c no one kno!s ho! far it reachesE
B. broad,b"c s!eeps is so far-reaching prosecutors may select for
punishment
4. %D1 a la! can be totally clear, yet still overbroad
". Bverbreath concern is not fair !arning but prohibiting protected speech
iii. Ti#$tene+ u% o<er0reat$ +o)trine 0& reLuirin# SUBSTANTIAL OVERBREAT!
to statute in<ali+ate statute &statute !as upheld+. %roadrick v Bklahoma &')(9+,
'
st
3mendment challenge to statute restricting political activities of the state2s civil
servants
'. Law in Puestion1 provided no employee in the civil service shall in any
manner be concerned in soliciting or receiving any assessment or contribution
for 3#G political organi;ation, candidacy, or other political purposesE also
prohibited taking part in management of affairs of any political party or in
any political campaign, e-pect to e-ercise right to privately e-press opinion
and cast vote
.. @hite &ma8ority+
A. challenge that plain language of statute !ould prohibit !earing buttons
or displaying bumper stickers so statute is B:L?%?B3IE
B. charged !" actively engaging in partisan political activities,including
the solicitation of money,among co!orkers for the benefits of their
superiorsE
C. invokes standing principles,that on person cannot challenge
constitutionality of la! on the ground that it may conceivably be
unconstitutionally applied to someone else %D1 once tiny e-ception
for '
st
3mendmentE
(. since departing from traditional rules of standing in application to first
amendment by using overbreath, the doctrine has been used sparinglyE
e. %arti)ularl& w$ere )on+u)t an+ NOT ;erel& s%ee)$ is in<ol<e+C
t$e o<er0reat$ o* a statute ;ust not onl& 0e REAL 0ut
SUBSTANTIAL as well, 8udged in relation to the statute2s plainly
legitimate s!eep
/. %rennan dissenting &!" 9 others+
A. #o effort to define substantial overbreath, !hat is itF 3lready require
more than a single invalid application,!hat more does the ma8ority
!antF Ko! much is enoughF
B. @hy speech"conduct dichotomyF Lven !here both are protected by
the '
st
3mendment,one under e-pressive speech the other under
speech itself
A)
IV. %D1 still struck do!n ordinance for overbreath ' year later !here ordinance
prohibited to curse or revile or to use obscene or opprobrious language to!ard or !"
reference to any member of the city police !hile in actual performance of his duty
Le!is v $ity of #e! Brleans, &')(J+
'. Bverbroad b"c revile and !" reference to M!hat does revile mean and
!" reference to doesn2t even require in the same room or to!ard anyone
specific
.. Bne commentator claims Le!is sho!s that %roadrick !ill have little if any
effect on the '
st
3mendment overbreath doctrine
V. $ourt upheld overbreath attack against municipal ordinance,Dsed substantiality
requirement to mean that there must be a realistic chance that the statute itself !ill
significantly compromise recogni;ed 0irst 3mendment protections of parties not
before the $ourt for it be facially challenged on overbreath grounds Los 3ngeles
$ity $ouncil v 1a-payers for :incent &')*J+,ordinance
VI. $ourt found unconstitutionally overbroad resolution of 3irport,L3U not open for '
st
3mendment activities &no need to mention %roadrick2s substantial test+ %oard of
3irport $ommissioners v /e!s for /esus &')*(+,royally S1DPII resolution b"c
reaches the universe of e-pressive activity,event talking and reading or !earing
campaign buttons or symbolic clothing
<ii. O<er0reat$ an+ t$e Pu0li) 8oru;
'. Ca8ority found an ordinance prohibiting 9 or more people on the side!alks a
manner annoying to passerby2s unconstitutionally vague and overbroad
$oates v $ity of $incinnati
A. @hite &dissenting+,since the ordinance does not regulate speech but
prohibits person from assembling and conducting themselves in a
manner annoying to other person,even if >s !ere picketing,State
can regulate b"c it is 3$1IB# even if there is an incidental impact on
speech
<iii. O<er0reat$ an+ C$arita0le Soli)itations
'. %roadrick limitation received only a brief reference involving an overbreath
challenge to an ordinance prohibiting door-to-or solicitation of contributions
by charitable organi;ations that do not use at least (AV of their receipts for
charitable purposes,upheld :illage of Schaumburg v $iti;ens for a %etter
Lnvironment &')*5+
A. #ote,@hite !ho !rote %roadrick said, our cases long have been
thought to protect-on-street < door-to-door solicitation as protected
speech even though it is the form of solicitation to pay money
B. Bverbroad b"c gets at fraud 3#I lots of other non-fraudulent
charitable groups &charitable solicitation is protected '
st
3mendment
e-pression+ that don2t have that type of overhead
H5
.. 3dded fle-ibility in the form of a !aiver for organi;ations that do not have
the sufficient level of overhead is insufficient to save the statute from an
overbreath attack,substantial overbreath requirement of %roadrick
Secretary of State of CI v Cunson &')*J+,regulation required to go to
agency that regulate charities and get a !aiver to sho! no fraud involved
!hen less than certain overhead
A. Bverbroad b"c does not get to the distinction bet!een fraud and no
fraudE PLDS adds prior restraint and requires charities to sho! books
to CI chilling protected speech
B. Iissenters &J+,court ignores the difference bet!een this statute and
that is Schaumburg
/. #o mention of %roadrick Illinois e- rel Cadigan v 1elemarking 3ssociates
,*AV !ent to overhead and 'AV to charityE phone solicitors made fraudulent
representations that )5V goes to charityE Illinois Supreme thre! out b"c relied
on chilling effect on solicitation of charitable donors b"c !ould require
divulgence of overhead Supreme court reversed.
A. #B1 overbroad b"c targeted B#LG fraudulent representationsE
B. $oncurrence,fraud $3##B1 be based on the *A"'A split alone,
doesn2t prove it isn2t a charityE but need more like the promise )5V to
charity &affirmative misrepresentations+
i3. O<er0reat$ an+ t$e C$il+ Porno#ra%$& Pro0le;
'. L-pands reach of %roadrick,reversed #G $ourt of 3ppeals invalidation of
on overbreath grounds of a state statute that prohibited the kno!ing promotion
of a se-ual performance by a child under the age of si-teen by distributing
material that depicts such a performance #G v 0erber
A. Procedural Kistory. $ourt of 3ppeals found overbroad b"c !ould limit
legitimate literary, scientific, or educational materials and did not use
%roadrick b"c believed pure speech involved
B. Ca8ority
i. %roadrick sound rationale and should be applied here !here
harmful employment of children to make se-ually e-plicit
materials for distributionE
ii. special substantiality requirement of %roadrick applicable b"c
the e-tent of deterrence of protected speech can be e-pected to
decrease !" declining reach of the regulationE
iii. Cessage &dictaF+,all overbreath challenges should apply
%roadrick regardless of !hether speech or action
G. 8IG!TING OR(SC O88ENSIVE SPEEC! > !ATE SPEEC! (OCTRINE
I. %irth of the 0ighting @ords Ioctrine $haplinsky v #e! Kampshire &')J7+,
$haplinsky-/ehovah2s !itness !ho distributed pamphletsE told cro!d $haplinsky !as
engaged in la!ful activity %D1 also told $haplinsky cro!d !as restless
'. S%ee)$1 $haplinsky said, Gou are a =od-damned racketeer and a damned
fascist and the !hole government of ?ochester are 0ascists or agents of
0ascists
.. Law in Issue1 > !as prosecuted under statute !hich forbade addressing any
offensive, derisive or annoying !ord to any other person !ho is la!fully in
H'
any street or other public place, nor call him by any offensive or derisive
name
/. Pro). !istor&1 state supreme court put gloss on statute,only !ords
forbidden !ere ones that had a direct tendency to cause acts of violence by
the persons to !hom, individually, the remark is addressed &=loss O b"c
statute !as overbroad,annoyF $ome on+
4. Su%re;e Court en+orse+ t$e #loss an+ #a<e 0irt$ to 8IG!TING OR(S
+o)trine1
A. the !ord offensive is not to be defined in terms of !hat a particular
addressee thinks 1he test is !hat men of common intelligence !ould
understand to be !ords likely to cause an average addressee to fightM
Such !ords, as ordinary men kno!, are likely to cause a fightE
0. !ere,clearly calling someone a damned racketeer and a damned
0ascist are fighting !ords !hich !ould cause the average person to
retaliate, thereby causing a breach of the peace,#B1 protectedE
). Certain un%rote)te+ )ate#ories o* s%ee)$,the le!d and the
obscene, the profane, the libelous, and the insulting or Zfighting2 !ords
,those !hich by their very utterance inflict in8ury or tend to incite an
immediate breach of the peaceMsuch utterances are of such slight
social value as a step to truth that any benefit that may be derived from
them is clearly out-!eighted by the social interest in order and
morality
+. Rationale,!ords brigaded !" action not deserving of protection of
speechE slight social value
II. Bverturned conviction b"c > engaged in speech and no conduct,government has no
po!er to punish the use of offensive e-pletives absent a particulari;ed and compelling
8ustification $ohen v $alifornia &')('+
'. S%ee)$1 1-shirt said, 0uck the draft in public court house &peace !as not
disturbed, > !as not unruly and people !ere not disturbed+
.. Law1 unla!ful to disturb peace
/. Karlan &Ca8ority+
A. @earing the t-shirt !as 8ust speech &#B1 conduct+ O e-pressive
messageE
B. Since speech,regulation of manner speech #B1 the messageE
C. La! cannot be 8ustified on protecting atmosphere of courthouse b"c
la! broadE
(. #B1 obscene speech b"c not erotic in any !ayE
E. #B1 fighting !ords b"c not address to anyone,not a personal insultE
8. mere presence of un!illing vie!ers is insufficient to 8ustify curtailing
speech,
G. !e are often $3P1I:LS outside the sanctuary of the home 3#I here
no evidence po!erless persons forced to observe itE
$. A0sent a ;ore %arti)ulari?e+ an+ )o;%ellin# reason *or its a)tionsC
t$e State ;a& NOT ;aIe si;%le %u0li) +is%la& o* an e3%leti<e o*
its )$oi)e a )ri;inal o**ense.
I. notes that much e-pression serves a dual purpose and asks ho! to
distinguish one e-pletive from any other offensive !ord,no right to
cleans the public debate
H7
J. %lackmun !" %urger < %lack &dissenting+,$B#ID$1 not speech
and fighting !ords !"in $haplinskyE speech concerns are !asted
4. Ot$er <iews
A. Professor %ickel,!hat about verbal violence, a kind of cursing,
assaultive speech that amounts to almost physical aggression, bullying
that is no less punishing b"c it is simulated !hich O assaultE !hich also
may create a climate !here freedom of e-pression is not possibleE
B. Po!ell &dissenting in ?onsfeld v #/+,defined offensive e-pression to
include the !illful use of scurrilous language calculated to offend the
sensibilities of an un!illing audienceE 3#I the shock and sense of
affront, and sometimes the in8ury to the mind and spirit, can be as great
*ro; wor+s as *ro; %$&si)al atta)I.F
iii. T$e SIoIie Cases,Na?i %art&
'. :illage enacted ordinances to stop #a;i parades struck do!n as
unconstitutional $ollin v Smith &(
th
+,#a;is !anted to parade through
$hicago /e!ish neighborhoods
A. 3dmit it !ill disturb, emotionally and mentally, most of the :illage
residentsE
B. %D1 the '
st
3mendment invites dispute, induces a condition of unrest,
and creates dissatisfaction !" conditions as they are or even stirs
people to anger &quoting 1erminiello v $hicago &')J)++,these are
among the KI=K purposes of the '
st
3mendment
.. Lo!er court in8unction from displaying the s!astika on grounds it !ould
breach the peace rev2d by Illinois Supreme $ourt :illages of Skokie v
#ational Socialist Party &')(*+
A. 1he display of the s!astika,no matter ho! offensive,is symbolic
speech and #B1 fighting !ordsE
B. #B1 fighting !ords %"$ '+ not directed at any one person and 7+ a
speaker !ho gives prior notice of his message has not compelled
confrontation !" those !ho voluntarily listenE
C. KBS1ILL 3DIIL#$L problem,courts have consistently refused to
ban speech b"c of the possibility of unla!ful conduct by those opposed
to the speaker2s philosophy O KBS1ILL 3DIIL#$LS are #B1 a
basis for restraining other!ise legal '
st
3mendment activity
i<. '
st
!ostile Au+ien)e Pro0le; )ase (0ut +oes not su%%ort +o)trine,arrest okay b"c
not arrested for speech but the reaction !hich engendered !here speaker !ent beyond
speech to incitement to riot %D1 normally a hostile audience cannot be allo!ed to
silence a speaker 0einer v #e! Gork &')A'+,man asked to stop speaking !hen
cro!d go all riled upE then commanded to stop speakingE then arrested
'. %lack &dissenting+,police have a right to protect the speaker < breach of the
peace %D1 still must make all reasonable efforts to protect speaker even to the
e-tent of arresting the man !ho threatened to interfereE cannot 8ust stop
speaker b"c it is easier than stopping the unla!ful mob
H9
<. (2) Dpheld group libel statute &A to J+ %eauharnais v Illinois &')A7,la! prohibited
publications that depicted one race as criminal, unchaste, etc,group libel statute
'. Probably !ould not be upheld todayE
.. Bnly possible 8ustification is that racist speech is an offense to human dignity
Pbut !ould probably fail under ?3:QE
/. B? LP argument,equal protection should trump &or at least be balanced
against+ '
st
3mendment considerationsE
4. #ever been reversed but has been discredited
". Karms Lffect rationale,our '
st
3mendment la! not based on the harms that
flo! from speech &%D1 considerable movement in other nations to make hate
speech unprotected for this reason+
VI. Strikes do!n hate speech ordinance ?3: v $ity of St Paul &'))7+
'. A)tion1 > burned cross inside fenced yard of black family that lived across
the street from the house !here he lived
.. Or+inan)e in issue1 @hoever places on public or private property, a symbol,
ob8ect, characteri;ation or graffiti, including, but not limited to, a burning
cross or #a;i s!astika, !hich one kno!s has reasonable grounds to arouse
anger, alarm or resentment in others on the basis of race, color, creed, religion
or gender commits disorderly conduct and shall be guilty of a misdemeanor
/. Pro) !istor&1 Cinnesota Supreme $ourt gave limiting construction,only
reaches e-pressions that constitute fighting !ords !"in the meaning of
$haplinsky
4. S)alia (Ma@orit&)
A. Kistorically, content based regulations are presumptively invalidE
B. 3llo! some categorical denial of speech,but categorical approach is
limitedE
C. %D1 these categorically limited areas are still speech and can be made
the vehicles for content discrimination unrelated to their distinctively
proscribable content
i. &in other !ords,even though they are not-protected categories
of speech if you only regulate SBCL of that not-protected
category of speech that makes the regulation content-based and
therefore presumptively invalid,D#IL? I#$LDSI:L+
(. If the basis for the content discrimination consists entirely of the very
reason the entire class of speech at issue is proscribable, no significant
danger of idea or vie!point discrimination e-its
i. L-ample, state can permit only most prurient obscenity %D1
cannot permit only obscenity that involves political messages
ii. Br threats against President b"c greatest threat to nat2l securityE
iii. 3#I secondary effects are okay,quotes ?enton 1heatres
E. Brdinance is facially constitutional,even if limited to fighting !ords
the remaining unmodified terms makes clear that the ordinance only
applies to fighting !ords on the basis of race, color, creed, religion or
gender &cannot ignore fighting !ords on other disfavored sub8ects,
homose-ualityE political affiliationE etc+E
8. :ie!-point based b"c use s!astikas and cross burning as e-amples,
bias-motivatedE
HJ
G. Iisagrees !" secondary effects argument,to protect against the
victimi;ation of a person or persons !ho are particularly vulnerable b"c
of membership in a group that has been historically discriminated
against %"$ this la! is directed at direct effects of speech,the emotive
impact speech has on the audienceE
!. #B1 narro!ly tailored to serve a compelling state interest,yes,
compelling to protect human rights %D1 the danger of censor ship by
the facially content based statute makes it #B1 narro!ly tailoredE
i. e-istence of content-neutral alternatives makes invalid
I. #B1L,sees cross burning as speech
". @hite !" %lackmun and B2$onner !" Stevens &concurring but do not 8oin I&3+
&a through d above++ &J disagree !" under-inclusive test+
A. B#LG agree that the la! is unconstitutional,b"c of B:L?%?L31K
B. critiques ne! under-inclusive doctrine &ne! to them+ 3#I not briefed
to the courtE
C. Dnprotected categories of speech are D#P?B1L$1LI !hich means
no protection so content-neutral is #B1 an issueE
(. underbreath doctrine has no function,permits e-pressive conduct that
is fighting !ords and other unprotected categories until the city adds a
catch all phraseE
E. Ca8ority characteri;es hate speech as a form of discussion or debateE
8. If used today2s standard, %urson la! !ould have been invalidated, not
upheld
i. %urson,challenged election la! proscribing political speech
near polling places DPKLLI b"c narro!ly tailored,did not
fail b"c could have been drafted in larger, broader, more content
neutral terms &09) +onBt $a<e to re#ulate a0out %ro0le;s t$at
+onBt e3ist,the polling places !here not overrun !"
commercial speech leaflet and even if !ere did not infringe on
the voting process+
G. 3#I 1itle :II !ould have to be invalidated 3#I even the la! against
threats to the President
!. 1hat is e-actly !hat the ordinance does,protects the most dangerous
fighting !ordsE
I. Bverbroad b"c Cinn Supreme $ourt defined fighting !ords as !ords
!hich by their very utterance inflict in8ury or tend to incited an
immediate breach of the peace %D1 $ourt !as far from clear on
identifying the in8uries inflicted by the e-pression St Paul sought to
regulate
i. anger, alarm or resentment is too %?B3I and generali;ed to
entail constitutional protection
J. #B1L,see cross burning as action'
5. %lackmun &concurring in 8udgment+
A. either !ill serve as precedent or fall by the !ay side and either is bad
B. If precedential, !e are forbidden from categori;ing speech !hich !ill
reduce protection across the board b"c State cannot simply regulate
speech !" the greatest harmE
C. If !on2t have effectE erodes respect for $ourt,manipulates doctrine to
get desired result
HA
6. Stevens !" @hite < %lackmun &concurring in 8udgment+
A. conduct that creates special risks or causes special harms may be
prohibited by special rulesE
B. should not adhere to either e-treme &overbroad or underbroad+,does
not agree !" any categorical approach to '
st
3mendment
C. !ould use harms-effect rationale
7. ?esults of Scalia2s Bpinion
A. $3##B1 ban hate speech !"out banning all speech of the kindsE
B. hate speech is not a category for legislatureE
<ii. Is it %ossi0le to ri#$t a <ali+ -$ate s%ee)$F or+inan)e2
'. @isconsin statute upheld !hich enhanced criminal penalties !hen victim is
selected b"c of race @isconsin v Citchell &'))9+,black men attacked and
beat !hite boy severelyE enhancement made 7 year sentence go to (
A. Kere it is conduct, and not speech, regulating b"c physical assaultE
i. %D1 > contends only enhancing the sentence for the thought
not the assault itselfE
B. @hile a person may not be punished for his abstract beliefs, he may be
punished for CB1I:L
C. La! aimed at unprotected conduct,here la! directed at unprotected
conduct and not protected speech &?3: !as speech+
(. La! only singles out bias-motivated crimes,state purpose is b"c bias-
motivated crimes more likely to provoke retaliationE inflict distinct
emotional harmE and incite community unrest,all adequate
compelling State interests
.. Struck do!n #/2s hate crime statute that allo!ed the trial 8udge to e-tend term
of imprisonment if found by a preponderance of the evidence that the >
committed the crime !" purpose to intimidate a group b"c of race, color,
gender, handicap, religion, se-ual orientation, or ethnicity 3pprendi v #e!
/ersey &7555+,fired several bullets into home of an 33 family !ho had
recently moved into an all !hite neighborhood L-tended term from A to '5 to
'7 years
A. CDS1 prove all elements of a crime beyond a reasonable doubtE
0. Must asI +oes t$e reLuire+ *in+in# e3%ose t$e T to a #reater
%unis$;ent t$at t$at aut$ori?e+ 0& t$e #uilt& <er+i)t2
i. I* &esC then makes the offense greater 3#I must prove beyond
a reasonable doubt
ii. I* noC then 8udge can impose at sentencing by a preponderance
standard
/. 3#I Prosecution cannot get bias-enhancement by independent information
that > is member of 666 &or racially motivated group+, must sho! bias
related to the particular crime Ia!son v Iela!are,> member of !hite
supremacist gang but killing nothing to do !" racial biasE cannot use racial
bias
HH
4. @hile a State C3G ban cross burning carried out !" the intent to intimidate,
:3 la! unconstitutional b"c treats burning a cross as prima facie evidence of
intent to intimidate :irginia v %lack &7559+
A. Statute,bans cross burning !" intent to intimidate a person or group
of persons !here burning cross is prima facie evidence of intent to
intimidate
B. $onvictions,one > burned cross on private property !" permission at
666 rally &!here talked some serious trash+,conviction vacatedE >7
burned a cross on 33 neighbor2s la!n claimed to get back for
complaining about shooting in the backyard,conviction remanded for
fact finding
C. B2$onner &Ca8ority+
i. notes history of 666E
ii. cross burning is symbol of hate !hich may be intimidating
messageE
iii. ?3: does not prohibit all forms of content-based
discrimination !"in a proscribable are of speech,okay to limit
to cross burning that intimidates b"c of historyE
i<. %D1 the presumption that is to intimidate !ould suppress
protected ideas,cross burning #B1 to intimidate !hich is a
statement of ideologyE
(. Stevens &concurring+
i. reaffirms concurring opinion in ?3:
E. Scalia !" 1homas &concurring < dissenting+
i. agree under ?3: state may !"out infringing on the '
st
prohibit
cross burning carried out !" intent to intimidateE
ii. agree should vacate and remand to :3 court can construe the
prima-facie-evidence provision,is rebutable and still told must
prove all elements beyond a reasonable doubtE
iii. %D1 not 8ustification to invalidate the provision on its face,
b"c is not SD%S13#I1I3LLG overbroad &not even close+
8. Souter !" 6ennedy < =insburg &concurring < dissenting+ (2)
i. Dses ?3: to strike do!n,claim !ould be invalidated under
?3: (2)E
ii. !ould invalidate 3LL 9 convictions
G. 1homas &dissenting+
i. $ross burning does not have an e-pressive quality !here
B#LG intimidating conduct is proscribedE
ii. this statute B#LG prohibits conduct
!. EAPRESSIVE CON(UCT (OCTRINE1 !O 8AR (OES T!E PROTECTION O8 S=MBOLIC
SPEEC! GO2
i. Puestions *or Con+u)t t$at S%eaIs
'. Is the regulation !" in the constitutional po!er of the courtF
.. Ioes the regulation further important substantial governmental interestsF
/. Is constitutional interpretation unrelated to suppression of freedom of
e-pressionF
4. Is the incidental restraint on freedom of e-pression no greater than necessary
to achieve the governmental interestF
H(
II. Symbolic action could sometimes be the most effective form of e-pressing an idea,
#B1 constitutional to compel student to salute the flag @est :irginia State %oard of
Lducation v %arnette &')J9+
III. Struck do!n a state statute that prohibited display of a red flag as a symbol of
opposition by peaceful legal means to organi;ed government under the '
st

3mendment Stromberg v $alifornia &')9'+
IV. =overnment interest in effective functioning of the Selective Service System is
sufficiently legitimate and substantial to 8ustify a la! prohibiting the conduct of
burning draft cars in spite of the incidental restrain on 0irst 3mendment e-pression
Dnited States v B2%rien &')H*+,> convicted for burning draft card
'. @arren &ma8ority+
A. @hen speech and non-speech elements are combined in the same
courts of conduct must ask J questions
B. %"$ cannot accept vie! that all speech !" action behind it &crimes for
e-ample+ can be protected,%D1 !hen speech and non-speech meet in
the same conduct, a sufficiently important gov2t interest in regulating
the non-speech element can 8ustify the incidental limitations on the '
st

3mendment freedoms
). NE OBBrien Test *or E3%ressi<e S%ee)$
i. Is the regulation !"in the legitimate po!er of the governmentF
'. Kere, yes po!er to form armies
ii. Ioes the la! further an important or substantial government
interestF
'. Kere, yes need to be quick and easy to respond for nat2l
security
iii. If yes, is the governmental interest unrelated to the suppression
of free e-pressionF
'. Kere, an allegedly illicit motive is not sufficient to strike
do!n a la! valid other!ise &even if a handful of
$ongressmen said !anted to suppress speech+
.. %D1 B2%rien argues PD?PBSL of statute is to prohibit
political speech &arrested b"c publicly burned, !ould not
have arrested if did so at home+
/. &Similar to asking if )ontentO0ase+ or )ontentO
neutral+
i<. If yes, is the incidental restriction on alleged 0irst 3mendment
freedom no greater than is essential to the furtherance of the
interestF &B? is the incidental restriction on freedom of
e-pression #L$LSS3?G to accomplish the purpose of the
la!F O read deferentially+
'. Kere, yes, no alternate means that !ould more precisely
and narro!ly assure continuing availability of armies
(. Kere, assuring the continued availability of the certificates is an
appropriately narro! means of protecting this government interest
!hich is unrelated to the idea e-pressedE
E. #B alternative means !ould be more precisely and more narro!ly
serve the gov2t interest
H*
.. NOTE,media elementE flag burning on '' o2clock < H o2clock ne!s
Iefense !as only !ay to e-ercise '
st
3mendment right to populari;e ideas and
secure access to media
/. Karlan &concurring+,I0 clear only !ay to reach audience, !ould vie!
differently
4. Iouglas &dissenting+,:ietnam !ar illegal b"c no declaration of !ar by
$ongress
<. Stru)I +own *la# 0urnin# )on<i)tion,1U venerated ob8ect statute could not
constitutionally be applied to convict a demonstrator for burning an 3merican flag as
part of a political protest at the ?epublican #ational $onvention 1e-as v /ohnson
&discussed in class but not assigned+,la! prohibiting flag burning
'. Dsed B2%rien 1est at first %D1 then !hen got to Y9 on incidental effect on
speech and !as clear la! !as :L?G CD$K related to suppressing political
speech,no sacred symbols under the '
st
3mendment,took out of B2%rien
and used strict scrutiny
.. $reated a t!o-track approach, if yes to Y9 &yes, related to suppression of
freedom of e-pression, then use strict scrutiny to strike do!n+E if no to YJ,
then continue !" B2%rien 1est
/. If there is a bedrock principle underlying the 0irst 3mendment, it is that the
=overnment may not prohibit the e-pression of an idea simply b"c society
finds the idea itself offensive or disagreeable
4. NNIf the regulation is based on the content of the symbolic speech in particular
&Y9+, then MOST EAACTING SCRUTIN= appliesNN
VI. #B 0DLL '
st
3mendment protection of symbolic speech
VII. Professor Lly2s suggestion for test,!hether the harm the state is seeking to avert is
one that gro!s out of the fact that the > is communicating, and more particularly out
of the !ay people can be e-pected to react to his message B? rather !ould arise even
if >2s conduct had no communicative significance !hatsoever &like the question
asked in oral argument of B2%rien+
'. burning draft card is '55V speech 3#I '55V action,asking !hich
predominates is really asking !hat should be protected
H)
I. T!E PUBLIC 8ORUM (OCTRINE
T&%e o* 8oru; Tra+itional Pu0li)
8oru;
Li;ite+ Pu0li) 8oru; NonOPu0li) 8oru;
@hat is Protected 3reas considered
traditional public forums
,historically had as a a
principal purpose the
free e-change of ideas
L-ampleE outside
statehouses, streets,
parks
3reas opened up by the
state"government for
e-pressive activity
3reas #B1 open for
public forums
traditionally &deemed by
court #B1 public forums
at all+ 0or e-ample,
8ails, libraries, military
bases, rapid-transit cars,
mail bo-es, public
debates on
1LLL:ISIB#, etc
6inds of ?ights to
3ccess
?ight of access 3#I
Lquality of access
assured,$3##B1 bar
all communicative
activity
Same rights of
3$$LSS %D1 a gov2t
may take the forum
a!ay completely
#eed only survive
rational basis and not be
content based,#B
guaranteed access
&e-cept not content based
e-clusion
$ontent-#eutral Significant governmental
interest PLDS must
leave open ample
alternate channels of
communication
Significant
governmental interest
PLDS must leave open
ample alternate
channels of
communication
?ational %asis !" marked
8udicial deference
$ontent-%ased S1?I$1 S$?D1I#G S1?I$1 S$?D1I#G Stri)t s)rutin&2
I. 3 public television broadcaster2s e-clusion of an independent candidate from debate
does not violate the '
st
3mendment 3rkansas Lducational 1elevision $ommission v
0orbes &'))*+
'. 6ennedy
A. Public broadcasters have '
st
3mendment obligations and candidate
debates are an LU$LP1IB# to the general rule that public television is
not normally sub8ect to analysis under the public forum doctrineE
B. Iebate is a non-public forum,rather than a designated public forum
,b"c only the gov2t creates a public forum by opening property up to
the general public for access and #B1 by simply granting access to
selected speakersE
C. %roadcaster created a nonpublic forum by restricting eligibility to
candidates for specific congressional seat and making candidate by
candidate determinations based on public support O selective #B1
general accessE
(. ?equiring 3LL candidates be req2d to participate might LICI1 speech
b"c dissuade net!ork from airing debateE
e. Can+i+ate e3)lu+e+ 09) o* la)I o* %u0li) su%%ort NOT <iew%ointC
#i<en ti;e )onstraints was a reasona0le e3er)ise o* +is)retion.
(5
.. Stevens !" Souter, < =insberg &dissenting+
A. understates distinction bet!een state < private o!nershipE
B. importance of public debate < political speech implicates highest
constitutional concernsE
C. advocates need for #3??B@, B%/L$1I:L, < IL0I#I1:L
S13#I3?S to guide e-clusions
i. #eed pre-established neutral principles to avoid vie!-point
based distinctions hidden in non-vie!point based rationale
J. COMMERCIAL SPEEC!
I. $ommercial 3dvertising,commercial speech outside the ambit of the 0irst
3mendment and therefore sub8ect to regulation by the gov2t :alentine v $hrestensen
&')J7+,bought subE launched in #G harborE see for \E hand billedE then stopped by
litter ordinance and put critique of police commissioner on the back Printed non-
commercial message solely to evade the ordinance
'. '
st
3mendment claim seen as mere ploy
.. $onstitution does #B1 protect purely commercial speech
II. Keld unconstitutional :3 statute !hich prohibited pharmacists from advertising the
price of prescription drugs :irginia State %oard of Pharmacy v :irginia $iti;ens
$onsumer $ouncil &')(H+
'. %lackmun &ma8ority+ &unanimous+
a. Co;;er)ial s%ee)$ H speech !hich does no more than propose a
commercial transactionE
B. $ommercial speech entitled to SBCL protection %D1 not as much
freedom as political speech
i. for e-ample, if elected official says !ill never raise ta-es and
does cannot sueE
ii. %D1 if say take pill and never get a cold again and then do, can
sue
). B9C )o;;er)ial s%ee)$ is MORE +ura0le an+ $ar+& than other
kinds of speech b"c of monetary incentive &less likely to be chilled+
3#I need to protect people from false advertisingE
(. ?ationale,need free flo! of commercial information in a free market
economy &for free market economy to function+,free flo! of
information serves that goal
III. $ommercial speech is e-pression related solely to the economic interests of the
speaker and its audience,e-pands definition of commercial speech 3#I made easier
to regulate $entral Kudson =as < Llectric v Public Service $ommission &')*5+&not
in reading but on board+,regulation reaction to oil embargo to make DS less
dependent on foreign oil banned all promotional advertising by regulating electric
activities in #G State interest O to decrease energy demand
'. Central !u+son Test U)orre)t answers to ;aIe t$e s%ee)$ re#ulateOa0leV
A. &'+ Is speech involved is illegal or misleadingF PnoQ
B. &7+ Is the governmental interest advanced by the regulation substantialF
PyesQ
C. &9+ Ioes it directly advance that interestF PyesQ
(. &J+ Is the regulation no more e-tensive than necessary to achieve the
governmental interestF PyesQ
('
.. Kere, YJ fails b"c some ads may promote $B#SL?:I#= energy, but those are
also banned by the statute
/. =overnment cannot paternalistically regulate truthful commercial speech
D#LLSS interest is substantial, directly advanced by regulation, 3#I not too
e-tensive"broad than necessary
IV. Central !u+son Test Puestione+ 0& Con)urren)e,?I la! banning the
advertisement of retail liquor prices e-cept at the place of sale violate the '
st

3mendment JJ Liquormart v ?hode Island &'))H+ &unanimous decision but plurality
on the standard for commercial speech cases+
'. Stevens &ma8ority+
a. Less t$an stri)t re<iew H !hen a State regulates commercial speech to
protect consumers from misleading, deceptive, or aggressive sales
practices or requires the disclosure of beneficial consumer information
B. &Plurality !ould change revie! standard+ 8ar less reason to +e%art
*ro; ri#orous re<iew +e;an+e+ 0& '
st
A;en+;ent H !hen a State
entirely prohibits the dissemination of truthful, non-misleading
commercial messages for reasons unrelated to the preservation of a fair
bargaining process
C. Kere, blanket ban #B1 related to consumer protection,blanket bans
#B1 related to consumer protection must be e-amined !ith care
i. &Liquormart caveat+ CDS1 ask
'. Is there a blanket ban on speechF
.. Is that ban related to consumer protectionF
(. 03ILS under $entral Kudson b"c no reasonable fit &fails YJ+
E. 3#I 7'
st
3mendment does not qualify the 0irst 3mendment
8. ?e8ects Posadas aspect &case that said if can ban the product 3LL
together, then can ban the advertising of the product+E
G. #B speech e-ceptions for vices,!hat is a vice any!ayF
.. Scalia !" 1homas &concurring+,doesn2t like $entral Kudson, but doesn2t
have a better idea so sticks !" it
/. 1homas &concurring+,do!n !" :3 Pharmacy,all attempts to dissuade legal
choices by citi;ens by keeping the ignorant are impermissible &no regulation
on truthful commercial speech+,strict scrutiny to all speech
4. B2$onner, ?ehnquist, Souter, < %reyer &concur in 8udgment+,?I la! invalid
D#IL? $entral Kudson
V. Lorillard 1obacco $o v ?eilly &755'+,applied Liquormart < $entral Kudson to
issue of tobacco advertising
'. Law at issue1 prohibits outdoor tobacco ads '555 feet radius of public
playground or elementary or secondary school or public park including point
of sale ads belo! A feet
.. State Pur%ose1 to eliminate deception and unfairness in !hich tobacco
marketed to children under legal age and to prevent access to underage
consumers
/. B2$onner &ma8ority+ &!" regard to cigars and smokeless tobacco,cigarettes
preempted by federal la!+
(7
a. Central !u+son Anal&sis
i. '+ < 7+ attorney general conceded la!ful product in truthful
mannerE
ii. 9+ relationship bet!een the harm that underlies the State2s
interest and the means identified by the State to advance that
interest
'. ',555 foot radius satisfied Y9,re8ecting that tobacco
advertising does #B1 have a causal link to tobacco use
&silly argument for tobacco companies+E $ourt said
ackno!ledges and has previously that advertising
stimulates demand for products
iii. J+ requirement of a reasonable fit bet!een the means and the
end of the regulatory scheme
'. 0ails,b"c not a good fitE '555 feet for Cass makes it
virtually impossible to advertise outdoors at allE 3#I
alternate avenues remain unavailableE
.. 1he IL=?LL to !hich speech is suppressed,or
alternative avenues for speech that remain available
under a particular regulatory scheme tend to be case
specificE the uniformly broad s!eep of the geographical
limitations demonstrates L3$6 B0 13ILB?I#=,
range of communications restricted D#IDLG %?B3I
/. State2s interest in preventing underage tobacco is
substantial %D1 tobacco retailers have an interest in
conveying truthful information about their products to
adults and adults have a corresponding interest in
receiving truthful information
4. 3#I point of sale ads fail Y9 3#I YJ b"c A foot rules
does #B1 advance the goal of curbing youth demand
for tobacco,not all children are less than A feet tall and
those !ho are can look up
4. 6ennedy !" Scalia &concurred in part and to 8udgment+
A. the obvious overbreath of the outdoor advertising restrictions suffices
to invalidate them under the J
th
part of the $entral Kudson testE
B. Part 9 lots of doubtE
C. 3#I still don2t like $entral Kudson test
". 1homas &concurring and dissenting+
A. agree fails intermediate revie! of $entral KudsonE
B. %D1 strict scrutiny should apply
5. %reyer !" Souter &concurring and dissenting+,court should have denied S/,
!anted more information on the effects of tobacco ads on kids
(9
G. OBSCENE > IN(ECENT SPEEC!
I. Codern Ioctrine of Bbscenity,Ciller v $alifornia &')(9+--
'. %urger &ma8ority+
a. Miller Test
i. (') !ould the average person, applying contemporary
community standards find the !ork, taken as a !hole, appeals
to the prurient interestF
ii. (.) does the !ork depict or describe, in a patently offensive
!ay, se-ual conduct specifically defined by applicable state
la!F
iii. (/) does the !ork, taken as a !hole, lack serious literary,
artistic, political, or scientific valueF
B. Bbscene material is unprotected by the courtE
C. %D1 state statutes that regulate obscene material must be carefully
limitedE
(. IB #B1 adopt the utterly !"out redeeming social value test,%D1 if
a State la! is !ritten or construed that !ay then fine
E. L-amples for &7+.
i. patently offensive representations or descriptions of ultimate
se-ual acts, normal or perverted, actual or simulatedE
ii. patently offensive representations or descriptions of
masturbation, e-cretory functions and le!d e-hibition of the
genitals
8. 31 minimum, patently offensive depictions CDS1 have SL?IBDS
literary, artistic, political, scientific value to !arrant '
st
3mendment
protectionE
G. #B criminal prosecution unless patently offensive hard core se-ual
conduct specifically defined by state la!
!. People in different states vary in attitudes and this diversity is not to be
strangled by the absolutism of imposed uniformity,therefore, for the
8ury to evaluate the materials !" reference to the contemporary
standards of the State of $alifornia in this case
i. EAPLICIT !OL(ING
i. ') obscene materials O ;ero protectionE
ii. .) States have po!er to regulate sub8ect to specific safeguards
!"out proving no value,D#LLSS a sho!ing material is of
SL?IBDS value can be madeE
iii. /) determine obscenity by contemporary community
standards #B1 national standards
II. 0$$ may regulate speech that is #B1 obscene !hen it is so indecent as to be a
nuisance depending on the specific factors of each case 0$$ v Pacifica 0oundation
&')(*+,=eorge $arlin recorded '7 minute monologue entitled 0ilthy @ords before
live audience in $3E repeated a lot of dirty !ordsE broadcast at 7 pm in #G radio
station o!ned by PacificaE man complained to 0$$ that heard broadcast in car !"
minor son
'. Issue1 !hether the 0$$ has any po!er to regulate radio broadcast that is
indecent but #B1 obscene
(J
.. 8CC Law1 0orbids any obscene, indecent, or profane language by means of
radio communicationE requires $ommission to encourage the larger and more
effective use of radio in the public interest
/. Ste<ens (;a@orit&)
A. 0$$ 8ustifications for la!,gro!ing Y of complaints about indecent
speech on air!aves
B. Pacifica2s argument,') overbroad 3#I .) $onstitution forbids any
abridgment of the right to broadcast in so much as #B1 obscene
i. '+ fails b"c revie! limited to R of !hether $ommission has
authority to proscribe a specific broadcast,this oneE
C. Protection of speech is not the same in every conte-t,!ords that are
commonplace in one setting are shocking in anotherE
(. Dndisputed broadcast vulgar, offensive, and shocking,not entitled to
constitutional protection in 3LL circumstancesE
E. Bf 3LL forms of communication it is %?B3I$3S1I#= that has
received the most limited '
st
3mendment protection
i. for e-ample, broadcasters CDS1 give free time to the victims
of their criticism
8. ?ationale for LL3S1 protection
i. uniquely pervasive presence,prior !arnings are ineffectiveE
ii. uniquely accessible to children
#. !OL(ING (narrowness), #DIS3#$L rationale requires a KBS1
of variables including the time of day, content of the program in !hich
the language is used, !hether radio, tv, or closed circuit transmissions
$. $en Co;;ission *in+s a %i# $as entere+ t$e %arlorC t$e e3er)ise
o* its re#ulator& %ower +oes not +e%en+ on %roo* t$at t$e %i# is
o0s)ene.
4. Po!ell !" %lackmun &concurring+,result turns on the unique character of
broadcast media combined !" society2s right to protect its children from
speech generally agreed to be inappropriate for their years 3#I !" the interest
of un!illing adults in not being assaulted by such offensive speech in homes
". %rennan !" Carshal &dissenting+
a. NOT !"in one of the unprotected categories and the ma8ority agrees it
is notE
B. 0ails to balance the interests of the listener !ho @3#1S to hear
broadcasts the 0$$ deems offensive,permits a ma8oritarian taste to
preclude a protected message from entering homes of a receptive, un-
offended minorityE
C. not prurient,but children still make it unprotectedE
(. should be up to the public,to the marketplace
III. 0ederal statute totally banning dial-a-porn unconstitutional Sable $ommunication of
$3 v 0$$ &')*)+
'. Iistinguished Pacifica b"c not a total ban on broadcasting indecent material
%D1 instead sought to channel such material to times of the day !hen children
!ould not be e-posed to it
.. 3#I dial-a-porn requires the person to take affirmative steps, !hereas in
Pacifica dealt !" the reluctant or un!illing listener
(A
L. !OSE 8IRST AMEN(MENT2
i. Pu0li) A))ess to Ele)troni) Me+ia
'. Kolding constitutional 0$$ fairness doctrine requiring broadcast licensee to
provide balanced treatment of controversial ideas ?ed Lion %roadcasting v
0$$ &')H)+,increased regulation 8ustified under the scarcity theory,the
broadcast spectrum is limited and must be treated as a scare public resource
.. 1he '
st
3mendment does #B1 mandate that the 0$$ require broadcast
licensees to accept paid editorials on controversial topics $%S v I#$ &')(9+
,such a doctrine !ould not promote the public interest in access since it
!ould intrude on 8ournalistic independence by involving the government
e-cessively into decisions on !hat to broadcast and !ould tend to permit the
affluent to determine the issues to be discussed
/. ?efusal to sell air time to a legally qualified candidate for federal elective
office violates the 0ederal Llection $ampaign 3ct of ')(', !hich creates an
affirmative enforceable right of reasonable access to the use of broadcasting
stations for individual candidates seeing elective office $%S v 0$$ &')*'+,
limited S131D1B?G, not constitutional, right to the media that pertains only
to legally qualified federal candidates
4. Substantial evidence e-isted to support congressional 8udgment that must-
carry rules, !hich require cable operators to carry the signals of a specified Y
of local broadcast stations &content neutral+ !ere narro!ly tailored to the
important interest in persevering the e-istence of local on-air broadcast
stations &absent the regulation, many broadcast stations !ould be denied
carriage and !ould 8eopardi;e their survival+ 1urner %roadcasting v 0$$
&'))J+
ii. Pu0li) A))ess to Print Me+ia
'. 3 state statute granting a political candidate a right to equal space to reply to
personal attacks by a ne!spaper violates the 0irst 3mendment Ciami Kerald
Publishing v 1ornillo &')(J+
a. Pro) !istor&1 Supreme of 0L held that right of reply la! entirely
consistent !" '
st
3mendment &relied on ?ed Lion+E freedom of press
protected and media and individual citi;ens are protected as !ell
&!ould not interfere !" freedom of press but !ould enhance freedom
of the press+E )ert #rante+R 7 savings constructions b"c too intrusive on
editorial press as !ritten '+ asked for any attack to O B#LG editorial
attacks &to limit scope and burden on editorial freedom+E '+
misdemeanor to O civil sanctions only PY9 &didn2t ask for+ to apply
only to defamatory or libelous languageQ
B. %urger &ma8ority+
i. =overnment regulation of !hat materials should go into a
ne!spaper !" respect to si;e and content of the paper, and the
treatment of public issues and public officials constitutes an
impermissible e-ercise of editorial control and 8udgment
ii. 1heory of 1ornillo,need right of access in this day and age
!here one company o!ns all media in one cityE
(H
iii. %urger ackno!ledges problem of mass media conglomerates
o!ning everything &that it is not the same environment as
'()'+E
i<. %urger ackno!ledges problem of #G v Sullivan,that made it
more difficult to sue the media to preserve freedom of speech
%D1 didn2t make it any easier to engage the media &access+ the
speech given !as not full of free ideas or !ide-open but
limited to a small elite groupE
<. %D1 even though arguments validM#B1 B63G to have
government coercion of the press,cannot compel editors or
publishers to publish !hich reason tells them should be
published
'. sees no difference bet!een you must publish and you
cannot publish
<i. If command, may have less speech b"c media !ill not print
opinions at all in order not to be forced to print replies,could
chill speech
C. %rennan !" ?ehnquist &concurring+,read not to B#LG affect right of
reply statutes and not retractions for defamatory falsehoods
i. 3#I did not effect them,still constitutional
(. %aron2s Position
i. problem is that media o!ns everything,so that an individual
has no right to access and therefore no real or meaningful right
to speech,there is no free market of ideasE
ii. media and citi;ens rights #B1 mutually e-clusive,can
accommodate both
.. &3ctual if not constitutionally required+ Results a*ter Tornillo
A. good 8ournalism practice requires opportunity to respond to editorial
attackE
B. op-ed pages,to create a spectrum of opposing vie!sE
C. press ombudsman,to consider complaints or individual readersE
permitted reader feedback for airing grievances
/. T$eories o* Press
A. ' O individual citi;en has right under the '
st
3mendment, media is
protected
((