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Doctrine of Selective State Action Doctrine Lochner Era

Incorporation 1. Public Function- A (Rise) Prohibited bakery workers from being

1. Fundamental principle private entity must regulated due to their fundamental right to
of liberty and justice. comply with the contract.
Lies at the base of our Constitution if it is _____________________________________
civil and political performing a task that
institutions. has traditionally been (Fall) The freedom to contract is not
2. Is a basic in our system exclusively held by the fundamental. The government has a rational
of jurisprudence. government. basis for regulating economics, (freedom to
3. A fundamental right 2. Entanglement Theory- contract). Economic regulations will be
essential to a fair trial. Private conduct must viewed with extreme deference to congress.
_________________________ comply with the _____________________________________
constitution if the Laws comply unless they are unreasonably,
government has arbitrary, or capricious AND the means
authorized, selected shall have a real and substantial
encouraged, or relation to the objective sought to be attained.
facilitated the
Equal Protection/ Ninth Amendment Due Process- Fundamental Rights
Due Process The enumeration in the Framework for Due Process Analysis:
Due Process- If the law denies constitution of certain rights, 1. Is there a fundamental right?
the right to everyone use this. shall not be construed to (Yes=Strict Scrutiny; No=Rational
disparage others retained by the Basis)(Usually Outcome
Equal Protection- If the law people. determinative)
denies the right to only SOME __________________________ 2. Is the right infringed?
people use this. (Fundamental Rights- Even 3. Is the government’s action justified
_________________________ though something is not by a sufficient purpose?
(Keep in mind that no rights are enumerated in the constitution, 4. Are the means sufficiently related to
absolute. If the government can the Ninth Amendment strongly the goal sought?
show a compelling justification supports the proposition that un-
and provides a least restrictive enumerated rights can be Fundamental Right:
alternative.) fundamental. Different Views on how to establish:
_____________________ __________________________ -Limited to the liberties Stated in the
-Judiciary should interpret framer’s intent.
-Those “deeply rooted in this Nation’s history
and tradition”

Right to an Abortion Right to Refuse Equal Protection
Roe- Two fundamental rights are Treatment 1. What is the classification?
vying against one another. The -You have a fundamental right a. Is it on its face?;
child’s right to life, with the to refuse treatment, but the state b. Or is it facially neutral,
mother’s right to choose. may require some burden of but has a discriminatory
-Had a very structured frame work, proof in showing you are impact. (Needs both
which was abandoned in Casey. competent. purpose and impact.)
Characterizing Roe’s holding is ______________________ 2. What is the appropriate level of
important. It has been seen as the -A state may prevent family scrutiny?
“right to choose,” which was based members from terminating a. Strict
on the fundamental right of treatment of another. b. Intermediate
privacy. This pits “life” against ______________________ c. Rational Basis
“liberty.” 3. Does the government action meet
Right to Physician the level of scrutiny?
Casey- Undue Burden Test- Can be Assisted Suicide (underinclusive/overinclusive
equated to a substantial obstacle or The court stressed the “intent” in analysis)
structural mechanism that impairs this case. “In some cases, __________________________________
the right to have an abortion. (Not painkilling drugs may hasten a Korematsu- Two main holdings (Which are
having a health exception for the patient’s death. A doctor who GOOD LAW):
mother has been held to be an assists a suicide, however, ‘must 1. All racial and national
undue burden. Also if the statute is necessarily and indubitably, classifications are subjected to the
ambiguous it is an undue burden intend that the patient be made strictest scrutiny.
b/c people are burdened if they dead.’” The Court said that the 2. In times of war, or national crisis
have to figure out the statute.) law traditionally has recognized the court will defer to the
this distinction in distinguishing government. (Hasn’t been
Concurring- Uphold the trimester between allowing refusal of challenged since WWII.)
approach. Based on precedent. treatment and prohibiting __________________________________
suicide. Segregation
Dissent-(Rhenquist)- Replacing the Brown v. Board of Education-
Roe analysis with undue burdens is The issue of a right to die is left (Broad View) Anything that segregates two
not supported by stari decisis. 14th to the political process; states races is unconstitutional.
amendment liberty does not create may prohibit or allow (Narrow View) The psychological
an all encompassing right to physician-assisted suicide ramifications of “separate but equal.”
privacy. Therefore “rational basis” largely unconstrained by the
should apply. Constitution.

Affirmative Action Arguments For: Arguments Against:
All affirmative action statutes are All racial classifications, whether There is a significant difference between
held to the level of strict scrutiny. invidious or benign, should be the government using racial classifications
The only form of affirmative subjected to strict scrutiny. The to benefit minorities and the government
action that has not been revisited Constitution required that the using racial classifications to disadvantage
is whether in education strict government treat each person as minorities. There is a long history of
scrutiny is used. The plurality an individual without regard to racism and discrimination against
used strict scrutiny. The his or her race, strict scrutiny is minorities, but no similar history of
concurrence/dissent used used to ensure that this occurs. persecution against whites.
_______________________ All racial classifications Achieving social equality requires
stigmatize and breed racial affirmative action at this point in American
hostility, and therefore all should history. The tremendous continuing
be subjected to strict scrutiny. disparities b/w blacks and whites in areas
___________________________ such as education, employment, and public
contracting necessitate remedial action.
Applying strict scrutiny would greatly
impede such remedial efforts because
relatively little ever has survived this
rigorous review.

There is a major difference between the majority

discriminating against the minority and the majority
discriminating against itself.
Gender Classification Arguments For: Arguments Against:
Intermediate Scrutiny- The It is an immutable characteristic The framers of the 14th Amendment meant only
government must show an to outlaw race discrimination.
important government purpose, It is warranted because of the
Biological differences between men and women
and the statue must be need for a strong presumption
make it more likely that the proposed laws will
substantially related to the goal against laws that discriminate be justified, this requires a level less than strict
sought. against people based on traits that scrutiny so the desirable laws will be upheld.
were not chosen and that cannot
For affirmative action the court be changed. Women are a political majority who are not
used different language. isolated from men and thus cannot be considered
“Exceedingly persuasive Gender like race is an a discrete and insular minority.
justification” to withstand immediately visible
scrutiny. characteristic. Now many people who used to favor strict
scrutiny are worried that if strict scrutiny is
_______________________ adopted, they will be unable to receive as many
The majority of Supreme Court Like racial minorities, women affirmative action benefits. This would be
cases concerning gender tend to be under represented in because of the strict level of review that would
discrimination have involved laws the political process. be required.
that benefit women and ___________________________ _____________________________
disadvantage men:
1. Gender classifications
benefiting women based on role
stereotypes and their roles in
family and the economy
generally will not be allowed.
2. Classifications benefiting
women designed to remedy past
discrimination and differences
in opportunity generally are
3. Classifications benefiting
women can be based on
biological differences between
men and women.

Alienage Classifications Arguments For: Arguments Against:
Strict Scrutiny is used to evaluate Aliens do not have the right to Alienage is not an immutable
discrimination against non- vote, and therefore cannot protect characteristic; aliens are capable
citizens. themselves through the political of being citizens after a relatively
Except when: process. (argument that has short time period.
1. Alienage classifications seemed to win the day)
related to self- It is appropriate to allow the
government and There is a long history of government more latitude than
democratic process discrimination against aliens, strict scrutiny permits in reserving
(Rational Basis Review); often based on prejudice or benefits for citizens.
and economic protectionism. ___________________________
2. Congressionally ___________________________
(Rational Basis)
1st Amendment Prior Restraints Pentagon Papers Case:
Content based restrictions-on “The term prior restraint is used Held: Any system of prior
speech must meet strict scrutiny. to describe administrative and restraints bears a heavy
judicial orders forbidding certain presumption against
Content Neutral Restrictions- communications when issued in constitutionality, in this case the
only need to meet strict scrutiny. advance of the time that such government didn’t bear its
a. Viewpoint Neutral communication are to occur.” burden.
b. Subject Matter Neutral ___________________________
___________________________ Collateral Bar- Person violating Leaves 2 major questions open:
an unconstitutional law may not 1. What difference if any
Vagueness- Law is be punished, but a person would there be if there
unconstitutionally vague if a violating an unconstitutional prior was a statute authorizing
reasonable person can’t tell what restraint generally may be prior restraints?
speech is prohibited and what is punished. (Promotes integrity of 2. What circumstances if
permitted. the courts.) any would justify a court
Proper remedy is to deal with order preventing
Overbreadth- a law that unprotected speech after it has publication so as to
regulates substantially occurred, not by prior restraints. protect national security.
more speech than the ___________________________
Constitution allows. 2 Exceptions: War -INSERT DIFFERENT VIEWS-
Requirements: 1. Troop movements; ___________________________
1. Must be substantially 2. Recruitment of the Licensing-
overbroad; and armed forces; 1. Important reason for
2. Can argue it would be 3. Number and location of licensing.
unconstitutional as troops; and 2. Clear standards leaving
applied to others. 4. Dates of transports. almost no discretion to
___________________________ ___________________________ the licensing authority.
3. Procedural safeguards.
(Ability of court to
quickly review.)

Incitement of Illegal Activity Fighting Words/ Hostile Hostile Audiences-
Audience/ and Racist Modern Rule:
Audience Control Approach-
1. Clear and Present Danger Speech 1. Threat of immediate
Test- Whether the words used violence;
are used in such circumstances Fighting Words- Those by 2. Reasonable effort to
and are of such a nature as to which their very utterance inflict protect the audience;
create a “clear and present injury or tend to incite an and
danger” that they will bring immediate breach of the peace. 3. A request to stop the
about the substantive evils that demonstrators.
Congress has a right to prevent. BUT, after Chaplinsky the court -This evolved from the “clear
Dissent under this first test has never again upheld a fighting and present danger” test. The
brought up the “imminent” test. words conviction. Used 3 problem with the clear and
2. Reasonableness Test- Speech is techniques: present danger test is that it
not protected so long as long as 1. Court has narrowed the allows an audience reaction, if
the government’s law and scope of the fighting hostile enough, to be a basis for
prosecution was reasonable. words doctrine by ruling suppressing a speaker.
Equivalent of rational basis. that it applies only to ___________________________
3. Risk Formula Approach- speech directed at Racist Speech- Courts can
Whether speech is or is not another person that is regulate racist speech.
protected depends upon the likely to produce a Beauharnais v. Illinois But lower
gravity of the evil compared with violent response. courts have treated this as no
its likelihood. 2. The Court frequently longer being good law.
has found laws ___________________________
4. Brandenburg Test- prohibiting fighting
a. Imminent harm Sexually Oriented Speech
words to be Miller v. California reaffirmed
b. Likelihood of producing unconstitutionally vague
illegal action that obscene “material is not
or overbroad. protected by the First
c. Intent to cause 3. The Court has found
imminent illegality Amendment” and formulated the
laws that prohibit some test for obscenity that continues
*Combined the most speech protective fighting words, such as
aspects of all the tests and incorporated to be used. The “basic guidelines
expression of hate based for the trier of fact must be:
them into one test.* on race or gender, to be
______________________ 1. ‘the average person,
impermissible content applying contemporary
based restriction on community standards’
speech. would find that the
Fighting words law will be work, taken as a whole,
upheld only if it is narrowly appeal to the prurient
tailored to apply just to speech interest; (a community
that is not protected by the First standard)
Amendment. However, the more 2. Whether the work
narrowly tailored a law become depicts or describes, in a
the more likelihood that it well patently offensive way,
be impermissible as a content sexual conduct
based distinction. specifically defined by
___________________________ the applicable state law
(Community Standard);
3. Whether the work, taken
as a whole, lacks serious
social value. (National

Child Pornography Protecting Low Value Profane and Indecent Language
Privacy Theory- The government Speech-(Sexual Speech that Cohen FUCK THE DRAFT
may prohibit the exhibition, sale, is neither child pornography or The government may not prohibit or
or distribution of child porn even if obscene) punish speech simply because others find
it does not meet the test for There is a category of speech it offensive.
obscenity. It’s non constitutional that does not meet the test for ____________________________
because it is a product of actual obscenity and this is protected Media by Media Approach
physical harm to the child. It’s not by the First Amendment, but is Radio Broadcast and Public Television-
the viewing by the third person that deemed to be of such low These forms of broadcast are uniquely
is the harm. It is the harm to the value speech and thus the pervasive and intrusive to the home.
child that is being protected. government has latitude to Confronts individuals in the privacy of
_______________________ regulate such expression. their homes. Allowed for prohibition and
Symbolic Expression punishment of speech in this.
Flag Burning and Campaign The court argued that the ____________________________
Finance zoning regulation was content Telephones
Flag burning is a protected form of neutral because it focused on The Supreme Court drew a distinction
speech. You can’t pass a law the prevention of secondary between “obscene” and “indecent” The
where you can burn a flag to bury effects. The court defined Court said that while the law was
it, but you can’t to show that you content neutrality not by the constitutional in prohibiting obscene
are upset with the government. terms of the law, but rather, by speech it was unconstitutional in
the legislature’s predominant prohibiting indecent speech.
Campaign finance does not fall purpose. The court has never
under O’Brien because there is answered how far it will allow The Court made not that there was no
non-speech involved. Spending city’s to go in their “captive audience.”
money in this way is speech. regulations. _________________________________
____________________________ ________________________ Cable Television
Expressive Conduct In the Playboy case the Supreme Court
Texas Test- Ask: used strict scrutiny to declare
Whether the state’s regulation unconstitutional a provision of the Cable
is related to suppression of act regulating sexual speech. The Court
free expression. IF it is NOT stated, “Since §505 is a content based
use Obrein, if it is use strict restriction on speech, it can stand only if
scrutiny. it satisfies strict scrutiny.”
Obrein- A government
regulation of symbolic or First time the Court has applied strict
communicative conduct is scrutiny to government regulation of
sufficiently justified if it is: sexually explicit, non-obscene speech.
1. Within the ____________________________
constitutional power The Internet
of the government; Reno v. ACLU the Sup. Ct. expressly
2. Furthers a important distinguished Pacifica. The court noted
or substantial that the FCC regulation of television and
government interest radio was applied to a time when children
3. The government might be listening, whereas the
interest is unrelated Communications Decency Act applies to
to the suppression of all hours. Also, Pacifica involved
free expression. sanction by a regulatory agency; the
4. The incidental Communications Decency Act imposed
restriction on alleged criminal penalties on violators. The act
1st amendment was ultimately struck down due to is
freedoms is no overbreadth. It lacked definitive language
greater than is in many instances.