Con Law Outline

I. Intro to Individual Rights under the Constitution A. Theories on Constitutional Interpretation 1. Originalism a. The Ct is justified in protecting constitutional rights only if they are clearly stated in the text or intended by the framers. b. Desire to limit unelected judges in a democratic society. c. If the Const is silent, it is up to the leg., not the cts to decide the law. Const can only evolve by amendments. 2. Non-Originalists a. Ct should have substantial discretion in determining the meaning of the Const. b. The Const. evolves by interpretation and not only by amendments to meet the needs of a society that is advancing technologically and morally. 3. Second Amendment Example a. U.S. v. Emerson (N.D. Texas 1999) 1. In Texas when a restraining order was granted in automatically included a ban on bearing arms. Emerson claimed that this interfered w/ his 2nd Amend rights. 2. Does the 2nd Amend cover an individual right to bear arms apart from a well regulated militia. 3. Textual Analysis: supports the individual right b/c the Amend’s independent clause (“the right of the people to keep and bear Arms, shall not be infringed”) is not qualified by the subordinate clause (“a well regulated Militia, being necessary to the security of a free State”). 4. Historical Analysis: England and the colonies supported an individual right to bear arms as a potential check against tyranny. However, only white men who were allowed in the militia had arms. 5. Structural Analysis: 2nd Amend placement w/in the Bill of Rights supports individual right concept. 6. A law-abiding citizen’s rights can’t be abridged by a boilerplate state ct divorce order. 7. Social Policy/ Consequential/ Prudential Argument: what are the consequences of this Amend? High death rates from guns. b. U.S. v. Miller (U.S. 1939): The Ct did not specifically answer if the right to bear arms is a collective or individual right, however it did state that it can be regulated. c. Ethos- who we are and how we make decisions (often contradictory: majoritarian v. individual dignity). 4. Majority and splinter opinions a. 5+ = “the opinion of the Ct.” b. <5 = “an opinion of the Ct.” c. “The judgment of the Ct.” – who won and who lost, regardless of reasoning. B. The Structure and Sources of Civil Rights & Civil Liberties Con Law Outline 1 1. The U.S. Const – Selected Provisions a. Art. I, secs. 9-10; Art. III, secs 2-3; Art. IV, secs 2; Art. V; Art. VI; Amends. I-IX, XIII-XV, XIX, XXIV, XXVI. b. Const. primarily addresses what the fed govt can and cannot do; mostly not designed to restrict state govts. 2. Application of the Bill of Rights to the States & Incorporation a. Barron v. Mayor and City Council of Baltimore (1833) 1. ∏ sued the City for making his wharf useless when it diverted the flow of streams in violation of the 5th Amend guarantee that prop will not be taken w/o just compensation. 2. The amends were intended as limitations solely on the exercise of power by the U.S. Govt and are not applicable to the leg of the states. b. Slaughter House Cases (1873) 1. Louisiana created a slaughterhouse monopoly to which several butchers who were not included objected claiming it violated the 14th Amend Privileges and Immunities Clause of national citizenship and equal protection and due process of law. 2. The 14th Amend protects the privileges and immunities of national, not state, citizenship, and neither the EP, DP, nor P&I Clauses of that Amend may be used to interfere w/ state control of the privileges and immunities of state citizenship. 3. Louisiana cannot be prevent under the 14th Amen from exercising its police power (to promote public health in slaughterhouses) to define particular p&i of its citizens. c. Incorporation 1. Originally, the Bill of Rights was designed just to apply to the fed. govt. It was expanded to states/municipals after the Civil War to protect former slaves from state denial of fed rights. 2. Selective Incorp- one at a time incorp rights until almost all of the Bill of Rights was incorp. 3. Didn’t Incorp: a. 3rd Amend right not to have soldiers quartered in a person’s home. b. 5th Amend right to a grand jury in criminal cases. c. 7th Amend right to a jury trial in civil cases. d. 8th Amend prohibition of excess fines. d. Saenz v. Roe (1999) 1. Calif. enacted a statute limiting the max 1st yr welfare benefits available to newly arrived residents. It was challenged under the 14th Amend P&I Clause. 2. Violates the fundamental right to travel by denying newly-arrived citizens the same p&i enjoyed by other citizens in the same state. 3. The 14th Amend states that the citizens of each state shall be entitled to all p&i of citizens of the several states. 4. The Citizenship Clause of the 14th Amend protects all citizens’ right to choose to be citizens of the state wherein they reside. 5. Since the law discriminates against some of the state’s citizens it requires strict scrutiny and the legitimate state interest in saving Con Law Outline 2 money does not justify discriminating among equally eligible citizens. 3. Application of the Constitution to Private Conduct a. State Action 1. State Action Doctrine- the Const applies to govt at all levels (fed, state, and local), and to the actions of govt officers at all levels, however, it does not apply to private entities or actors, unless the govt is somehow involved. 2. The Civil Rights Cases (1883) a. Congress passed the Civil Rights Act under the 13th and 14th Amend. prohibiting private citizens from excluding other citizens from inns, public transportation, etc. based on race. b. Civil rights guaranteed by the Const. cannot be impaired by the wrongful acts of individuals unless such acts are sanctioned or authorized by the govt. Congress cannot prohibit private discrimination under the 13th or 14th Amend. c. Dissent: To deny a citizen equal participation due to race is a vestige of slavery sufficient to invoke the 13th Amend. d. Govt can enact laws that require that private conduct meet the same standards that the Const. requires of the govt (independent from the Const.). b. Exceptions 1. Public Functions a. A private entity must comply w/ the Const. if it’s performing a task that has been traditionally exclusively done by the govt. b. Marsh v. Alabama (1946) 1. Town is owned by a private corp that does not allow the distribution of religious literature on the streets. Woman sues for violation of 1st and 14th Amend rights. 2. Running a town is generally done by a govt entity. The more a prop owner opens up his prop for use by the public, the more his rights become circumscribed by Const and statutory rights of those who use it. 3. If town had been a municipality, it would be clear that a conviction under a municipal ordinance for distributing religious literature in the streets would be unconst. Private ownership does not allow it to deprive citizens of fundamental rights. c. Jackson v. Metropolitan Edison (1974) 1. Private co that provides electricity terminated ∏ electric service for no-payment, and she claimed that this was a state action which deprived her of her prop w/o DP.

Con Law Outline 3 2. The mere fact that a business is subject to detailed and extensive state regulation does not covert its action into state action. Nor does the fact that it enjoys a partial monopoly. 3. The actions of the business do affect the public interest, but that alone does not make it a state action. 4. The state public utilities commission’s approval of Metropolitan’s tariff merely constituted a finding that it termination procedure was permissible under state law. 5. Dissent: State authorization and approval of “private” conduct supports a finding of state action. 2. Entanglement a. Private conduct must comply w/ the Const. if the govt has authorized, encouraged, or facilitated the unconst. conduct. Either the govt must cease its involvement w/ the private actor or the private entity must comply w/ the Const. b. Shelley v. Kraemer (1948) 1. Group of homeowners agree not to sell their houses to non-whites for 50 yrs. A house is sold to a black family and other homeowners sue to enforce the discriminatory K. 2. Judicial enforcement of this covenant is considered state action for 14th Amend purposes. 3. Could be extended to include any party who seeks to judicially enforce a K. Oddball case that is very narrowly construed. c. Edmonson v. Leesville Concrete Co. (1991) 1. Private litigants in a civil suit use their preemptory challenges to strike jurors based on race. 2. Lugar Test: A private party will be held to be a state actor if: a. The right of privilege exercised has its source in state power, and b. Whether the private party could fairly be described as a state actor: 1. The extent to which the actor relies on govt asst. and benefits. 2. Whether the actor is performing a traditional govt’l function. 3. Whether the injury caused is aggravated in a unique way by the incidents of govt’l authority. 3. Here the first part is met b/c the right involved is part of the judicial system. As to the second factor, a party to a lawsuit relies on state Con Law Outline 4 machinery and the injury he may cause would be carried out through govt’l authority. d. Burton v. Wilmington Parking Authority (1961) 1. Restaurant rented its place from the govt and didn’t serve blacks. 2. The govt and the restaurant were interdependent: govt needed restaurant for $ and restaurant needed govt for parking. e. Moose Lodge v. IRVIS (1972) 1. The Lodge had a state-issued liquor license and would not serve blacks. 2. Merely granting a liquor license to a private club which engages in discrimination is not sufficient state action to invoke the 14th Amend. 3. Dissent: Where a state grants a limited resource to a racially discriminatory private group it is encouraging and fostering racial discrimination. f. Brentwood Academy v. Tenn. Secondary Sch. (2001) 1. Whether a statewide assoc. incorp. to regulate interscholastic athletic comp. among public and private high schools may be regarded as engaging in state action when it enforces a rule against a member school. 2. The nominally private character of the Assoc. is overborne by the pervasive entwinement of public institutions and public officials in its composition and workings, and there is no substantial reason to claim unfairness in applying const. standards to it. 84% of its members are public shools. II. Equal Protection A. Equal Protection Methodology Levels of Scrutiny Means Least restrictive End Burden Rational Basis Reasonably/rationally related No Legitimate Challenger -disability, economic, social, orientation Intermediate Scrutiny Substantially related Probably not Important Govt -gender, legitimacy Strict Scrutiny Necessary Yes Compelling Govt -race, ethnicity, national origin, aliens, fundamental rights 1. Applies to States and Fed govt equally a. States: 14th Amend. b. Federal: 5th Amend (EP taken from DP). 2. Originally was created after the Civil War and applied only to Blacks. It was expanded to other groups beginning in the 1960s. 3. Framework for EP Analysis a. What is the Classification? b. What is the Appropriate Level of Scrutiny? c. Does the Govt Action Meet the Level of Scrutiny? B. Rational Basis Review 1. Steps Con Law Outline 5 a. First, look at the end: Is there a legitimate purpose? b. Then, is the means reasonable to get to that end? -Look for over and under inclusiveness. If it’s arbitrary, it will fail. c. Govt usually prevails under this test. “With bite” means the ∏ won. 2. Legitimate Purpose a. At the least, the govt has a legitimate purpose if it advances a traditional police purpose: protecting safety, public health, or public morals. Virtually any goal that is not forbidden by the Const. will be deemed sufficient to meet rational basis. b. Romer v. Evans (1996) 1. Colorado Const was amended to prohibit laws that extended special protection to homosexuals. Prevented liberal cities from giving special protection to homosexuals. Discriminated against homosexuals and some voters (liberals) whose vote will not count; minority voters will be engulfed into the majority. 2. Possible legitimate purposes: state claims it wants to make homosexuals equal, but ct finds that it is just born out of animosity. This law works to bar homosexuals from the protection that other have; does not put homosexuals on equal footing in purpose or effect. 3. Desire to harm a politically unpopular group is not a legitimate govt interest. Legitimate seems to be anything that isn’t animus. 4. Justice Kennedy, who gave the majority opinion seems to put the burden on the govt to prove legitimate purpose. 5. Scalia Dissent: Purpose it preserve traditional sexual mores and to prevent preferential treatment. You call it animus, but it’s really just our culture (like laws against polygamy). c. Does the Legitimate Purpose need to be Actual or is a Conceivable Purpose Enough? 1. Govt only need identify some conceivable legitimate purpose, regardless of whether that was its actual motivation. 2. U.S. Railroad Retirement Board v. Fritz (1980): Where there are plausible reasons for Congress’ action, our inquiry is at an end. It is constitutionally irrelevant whether this reasoning in fact underlay the legislative decision. 2. Reasonable Relationship a. Underinclusiveness: Railway Express Agency v. N.Y. (1949) 1. Law prohibited advertising on vehicles, except business vehicles engaged in the owner’s work. Underinclusive b/c it does not eliminate all distracting advertising? 2. City claims the purpose is to eliminate distractions to drivers and pedestrians. Ct finds that local authorities may have concluded that those who advertise their own products do not present the same traffic problem in view of the nature and extent of their advertising. No EP requirement that all evils of the same genus be eradicated or none at all. b. Overinclusive: N.Y. City Transit Authority v. Beazer (1979)

Con Law Outline 6 1. The TA excluded all methadone users from employment. Methadone users argue that it is overinclusive since only 25% go back to drug or alcohol abuse. 2. Even though the rule is broader than necessary to exclude only unemployable methadone users, this is a personnel matter that’s not protected by the EPC. c. Arbitrary and Unreasonable Laws 1. U.S. Dept. of Agriculture v. Moreno (1973) a. Fed. law denied food stamps to any household containing an individual unrelated to any other member of the household. b. Govt’s state purpose was to prevent food stamp fraud. However, leg. history show that it was discriminatory intent toward “hippies.” c. This is not a rational way to prevent fraud- there is nothing in the record to tie this category to fraud. d. It is overinclusive b/c not all unrelated people living in a household will commit fraud w/ food stamps. It is underinclusive b/c there are others who will commit fraud that do not fall in this class. 2. City of Cleburne, Texas v. Cleburne Living Center (1985) a. City denied a permit to the Living Center to build a home for the mentally retarded. b. Why is it okay for the city to have extra-stringent requirements for a home for the mentally retarded? City says: 1. Neighbors don’t want it. Shelley v. Kreamer- govt (cts) can’t enforce discrimination/segregation. 2. Would be in a flood plain- it would be okay to but a nursing home, pre-school, etc. there, so this is grossly under inclusive. 3. Jr. High students might taunt the retarded- there are already mentally retarded students that go to the school. c. Heightened Scrutiny Factors: 1. Historical discrimination. 2. Politically Powerless- can they address discrimination. -If there’s leg. protecting them, it weakens this argument. 3. Immutable Characteristic- can’t change it. d. Ct finds that there is no heightened scrutiny b/c there’s leg. to address the discrimination of the disabled. However, the ordinance is irrational and doesn’t pass rational basis. III. Equal Protection: Racial Classifications A. Before the Civil War Amendments & Strict Scrutiny Framework

Con Law Outline 7 1. Orig. Const. contained the right to have slaves. The 13th Amend specifically banned slavery, but freed slaves had no protection. The 14th Amend extended EP to freed slaves. 2. Dred Scott v. Sandford (1856) a. Scott was owned by Sandford, who moved them into a free state, Missouri. Sandford died and Scott sought to sue his estate for his freedom. He won at the Missouri trial ct., but lost at the Missouri Supreme Ct. Scott sues in fed ct as a citizen of Missouri, under diversity jurisdiction. b. Ct says he does not have juris b/c he is not a “citizen” to bring diversity juris. The founding fathers wrote the Const for Negroes to not be free. c. Under an Orig Interpretation approach: when the Const was written there were no free Negroes, so they can only be seen as prop under the Const. d. Ct says even if they had juris, this would violate slaves owners const right to prop under the 14th Amend. B. Facial Classifications 1. Disadvantage: Korematsu v. U.S. (1944) a. Still good law. Only facial, racially discriminatory that is still good law. b Facially discriminated against those of Japanese ancestry during WWII, however didn’t apply to Germans or Italians. c. Order that prohibited persons of Japanese ancestry from prescribed military areas on the West Coast. Were basically the entire western states, so they had to go to an internment camp. d. There was a facial classification, so strict (rigid) scrutiny is applied. e. “Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can”- compelling interest. National Security is a compelling interest, and this is necessary to further this interest. f. Apprehension by the proper military authorities of the gravest imminent danger to the public safety can justify the curtailment of the civil rights of a single racial group. g. Murphy’s Dissent: Is this the least restrictive alternative? Just those who actual posed a threat could have been detained (no Germans, etc.). It is essential that there be definite limits to military discretion, especially where martial law has not been declared. No reasonable relation b/w the group characteristics of Japanese-Americans and the dangers of invasion, sabotage, and espionage. h. It is over and underinclusive. Over: detained children and the elderly. Under: didn’t detain those of ancestry from other enemy groups, or those on the East Coast. Military report says that the immediacy of war does not allow use to do a better job (don’t have time to sort out just those who are threats). i. Jackson’s Dissent: I can’t constitutionally endorse these actions. j. Robert’s Dissent: Procedural Due Process- need some form of individual review. 2. Burdening Both Whites & Minorities a. Loving v. Virginia (1967)

Con Law Outline 8 1. Racial Classification: Virginia law prohibits whites from marrying a non-white person. State claims it’s not discriminatory b/c it affects both races. 2. The mere “equal application” of a statute containing racial classifications is not enough to remove the classifications from the 14th Amend’s proscription of all invidious racial discriminations. 3. Lovings are a black man and white woman prosecuted in Virginia after being married in D.C. 4. Ethos- who are we, what are our values? Ct looks at what other states are doing. 5. Naim: State’s legitimate purposes were “to preserve the racial integrity of its citizens,” and to prevent “the corruption of blood.” 6. Ct says that white supremacy is not a legitimate reason. The fact that the statute prohibits only interracial marriages involving white persons indicates that its aim is to maintain white supremacy (invidious discrimination). b. Palmore v. Sidoti (1984) 1. White couple has a child and get a divorce. She gets custody of the child. When she marries a black man, her ex fights for custody arguing that the child will be stigmatized by a racist society. 2. The child may be stigmatized, but the ct will not support and affirm racist attitudes. There may be real consequences, but the ct won’t perpetuate it. 3. Segregation a. Plessy v. Ferguson (1896) 1. Plessy was convicted under a state law which provided for “separate but equal” railroad accommodations for whites and blacks. Plessy claimed that segregation violated the 13th and 14th Amend (EP) b/c it stigmatized blacks and stamped them w/ a badge of inferiority. 2. Social v. Political Equality: Justice Brown says the intent of the 14th Amend was to provide access to political institutions, not social equality. The 14th Amend was to enforce absolute equality of the two races before the law, but it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished for political, equality, or a commingling of the two races upon terms unsatisfactory to either. 3. This is a valid exercise of the state’s police powers: to preserve order and public peace. 4. Dissent: The statute interferes w/ the personal freedom of individuals to freely associate w/ others. The Const is about being color-blind and this law was about subordinating blacks. b. “Separate but Equal” was often challenged in legal education cases, where it was argued that the separate black facilities were not equal. c. Brown v. Board of Education (1954) 1. Chief Justice Vinson died and Earl Warren (former Republican Governor of Calif.) was appoint the Chief Justice by Eisenhower. Con Law Outline 9 2. Black children were denied access to public schools attended by white children under laws permitting segregation according to race. 3. Diff than other attacks on separate but equal b/c it focuses on the inherit inequality in separation even if the facilities are equal (this overturns Plessy)- only applies it to education. 4. As to Const intent discussed in Plessy, Warren says that education is part of a diff world now- education has become more important, even compulsory in some states. 5. “To separate children from others of similar age and qualifications solely b/c of their race generate a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” 6. Focuses on social science of damage separate does to minority children- told you’re not as good, don’t do as good. One can argue that Congress is in a better position to go through studies, etc. d. Now: how far should cts go to ensure integration? C. Facially Neutral laws with Discriminatory Impact 1. Washington v. Davis (1976) a. Classification: those who pass Test-21 are eligible for employment w/ the police dept., while those who fail are not. Blacks fail the test at a much higher rate. b. A law or official governmental practice must have a “discriminatory purpose,” not merely a disproportionate effect on one race, in order to constitute “invidious discrimination” under the 5th or 14th Amend. However, the disproportionate impact may be relevant as evidence of a discriminatory purpose. c. If not facially racially discriminatory, to get strict scrutiny, must show: 1. Disparate impact, and 2. Some sort of governmental intent. d. Dissent: At a minimum, the police dept. should have been required to prove that Test-21 either measured job-related skills or predicted job performance. e. If disparate impact was recognized, all sorts of laws could be challenged. There’s no evidence that this test relates to job performance. After this case, disparate impact claims shifted to Title VII, which recognizes racial disparate impact to prove racial discrimination, but damages are limited. 2. McCleskey v. Kemp (1987) a. Study shows that blacks who kill whites are more likely to get the death penalty. Black death row inmate sues the discriminatory process. b. Ct says only guaranteed individual, not group justice. Have to show individual discriminatory intent. Disparities in sentencing are inevitable. EPC is concerned w/ stopping discriminatory acts by the govt, not in bringing about equal results. c. Ct didn’t deny the pattern shown by the study, but said we need to see discrimination in this case (impact and intent).

Con Law Outline 10 d. Brennan Dissent: Georgia capital sentencing system itself provides opportunities for racial considerations in sentencing (i.e. no list given to the jury of aggravating and mitigating factors). 3. City of Mobil v. Bolden (1980) a. Negro voters claim that at-large elections discriminate b/c town is predominately white. Governed by the EP and the 15th Amend that ensures the right to vote. b. Gomillion v. Lightfoot held that a racially motivated gerrymander of municipal boundaries stated a claim under the 15th Amend. It was so obvious that intent was racially motivated. c. Need impact plus intent. Blacks have right to vote- no evidence of discrimination. d. Dissent: intent can be inferred. 35% of the population is black, but no blacks have been elected to the Mobile City Commission. 4. Palmer v. Thompson (1971) a. Rather than integrate, the city closes down public pools. b. The city does not have a duty to operate swimming pools and the closure affected all races equally. Evidence supported the city contention that they could not operate pools safely and economically on an integrated basis. 5. Personnel Administrator of Mass. v. Feeney (1979) a. Mass. provided that all veterans who qualify for state civil service positions must be considered ahead of any non-veteran. A female denied advancement pursuant to the veteran preference, challenged the law as discriminating against women in violation of the EPC. b. It is not enough to show the govt took action w/ knowledge of the discriminatory consequence, must show that the govt desired to discriminate. Must show that decision maker made decision “b/c of,” not merely “in spite of” its adverse effects. D. Affirmative Action based on Race 1. Regents of the University of Calif. v. Bakke (1978) a. Judgment announced by Powell b/c he was in the middle of the opinions. Davis can still use race in admissions, but not the system they had. b. Davis had 100 slots for admission to its medical school, of which it set aside 16 sets fro minorities only. Bakke sued b/c he believed that he would have been admitted had he been able to compete for all 100 seats. c. This is a facial racial classification, but does it deserve strict scrutiny? d. Powell applied a “stringent” examination, but there was no majority as to the level of scrutiny to apply. The EPC prohibits discrimination regardless of race (minorities and whites). In order to justify the use of a suspect classification, it must be established that the state’s purpose is both constitutionally permissible and substantial and that the classification is necessary to accomplish its purpose. e. Government’s Purposes: 1. Remedy Past Discrimination- explicit use of laws used to disadvantage a group based on their race (i.e. you can’t study at a medical school. -Powell says that quotas are discriminatory and against the Const. 2. Countering the Effects of Societal Discrimination Con Law Outline 11 -There is no evidence that Davis has specifically discriminated against minorities (proven, specific, intentional past discrimination may have justified such a remedy). 3. Increase Drs to Serve in Undeserved Communities -This is a compelling state interest, but there is no evidence that this will be accomplished by admitting minority students. 4. Diverse Student Body- improve ed. experience for everyone. -Ct finds that this is a compelling reason. f. Powell says that quotas are unconstitutional, but the “Harvard” system is aloud, which allows race to be considered, but not more important than anything else. g. Brennan writes an opinion that concurs and dissents: race can be taken into account, but quotas should be allowed. h. Marshall writes a separate opinion stressing that remedying past discrimination is what the Const. is for. i. Stevens says it should not be decided on Const ground, but under the Civil Rights Act. 2. Richmond v. J.A. Croson Co. (1989) a. City Council passed a plan to recognize specific minority groups that required general contractors on city construction projects to subcontract at least 30% of the K amount to minority-owned businesses. b. Classificationrace 1. Harmful (exclusionary)- strict scrutiny? 2. Benign (inclusionary)- intermediate? c. City argues that it is attempting to remedy various forms of past discrimination in the contracting industry. Can’t decide to remedy societal discrimination- need specific incidents of discrimination. If you have an amorphous end, can’t be narrowly tailored. d. State or local govts are limited to redressing discrimination that occurs in its jurisdiction and must identify such discrimination w/ specificity. e. O’Connor essential uses strict scrutiny to invalidate this, but says that affirmative action could be justified if narrowed. f. Stevens concurring: A govt decision that is based on racial classification should be allowed if it prevents discrimination in the future, not only if it remedies past discrimination. g. Scalia Dissent: State and local govts may not discriminate on the basis of race to remedy past wrongs. h. Marshall Dissent: Strict scrutiny should be applied only to measures that are racist in nature, not those that remedy past discrimination. 3. Adarand Constructors, Inc. v. Pena (1995) a. ∏, a white contractor, submitted a low bid. However, the general contractor signed a Hispanic-owned co. b/c of a congressionally created program that awarded contractors bonus monies for hiring minority- owned business. b. Ct applies strict scrutiny to overrule Metro. All racial classifications require strict scrutiny, but not fatal in fact. Remands to use the correct scrutiny. c. Scalia concurring: govt can never have a compelling interest to remedy past discrimination. Just one race in the eyes of govt. Con Law Outline 12 d. Dissent: we think about purposes and motives and should be able to distinguish b/w affirmative and negative motivation. 4. Grutter v. Bollinger (2003) a. The U of Mich. law school has an admission policy that focuses on academic ability coupled w/ a flexible assessment of applicants’ talents, experiences, and potential “to contribute to the learning of those around them.” A white woman is denied admissions and sues claiming that this policy violates EP. b. Must be narrowly tailored to further a compelling govt interest. c. The school justifies its use of race by the interest in obtaining “the educational benefits that flow from a diverse student body.” Ct finds that this a compelling interest. d. It is narrowly tailored b/c it is “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight.” e. Basically need some sort of individual determination. f. Thomas and Scalia partial dissent: Is there a compelling interest to elitism? The school could just lower its standards. If this is a compelling interest, anything is. 5. Gratz v. Bollinger (2003) a. Under U. of Mich. undergraduate admission policy an applicant was entitled to 20 points if a racial minority. b. Giving 20 pts to underrepresented minorities solely b/c of race, is not narrowly tailored to achieve the interest in educational diversity. There is no individualized consideration and race becomes a decisive factor. IV. Equal Protection: Gender and Other Classifications A. The Level of Scrutiny for Gender Classifications 1. Frontiero v. Richardson (1973) a. A statute provides that servicemen’s wives are automatically eligible for benefits as dependents while servicewomen must demonstrate that their husbands are dependent on them before they are eligible for the benefits. b. Classifications based upon sex, like those based upon race, alienage, or national origin are inherently suspect and must be subjected to strict scrutiny. c. U.S. has a long history of sex discrimination. Women (like blacks) still face pervasive discrimination in education, employment, and politics. It is an immutable characteristic. d. Applying intermediate scrutiny, the govt’s purpose of administrative convenience was not compelling. Govt did not show that this assumption was cheaper and easier. e. Stewart Concurrence: Should have been decided on rational basis of Reed. 2. Craig v. Boren (1976) a. Under Oklahoma statute, men 18-20 could not buy beer, but women could. This action was brought against the state by bartenders. b. Govt states that its interest is traffic safety and offers evidence that there are more dangers associated w/ men in this age group drinking.

Con Law Outline 13 However, only 2% more males are associated w/ traffic arrests and ct says this is not sufficient to est. a compelling interest. 3. U.S. v. Virginia (1996) a. Virginia Military Institute (VMI) is an elite public school that creates “citizens soldiers,” but does not allow women. When this is challenged based on EP, Virginia created the Virginia Women’s Institute for Leadership (VWIL), however it does not use the adversative method (endurance of immense stress). b. Gender based classifications must meet heightened scrutiny. Ct states that govt action must demonstrate an “exceedingly persuasive justification” for that action. This seems like more than intermediate scrutiny. c. Govt describes two purposes: 1. Better education (diversity in types of education, including monosex) –Ct doesn’t buy. 2. Adversative Method can’t be taught to women. –Not for most women, but if they want to do it you must let them. d. Can have classifications that perpetuate equality for women, but not ones that are discriminatory. B. Proving the Existence of a Gender Classification Geduldig v. Aiello (1974) 1. California’s disability ins. system excluded disabilities resulting from normal pregnancies and birth. Women w/ pregnancy-related disabilities challenged the exclusion as violating the EPC. 2. Not every disabling condition is covered under the program. Calif. does not on the face of the program discriminate w/ respect to the persons or groups eligible under the program, it has merely chose not to insure certain risks. 3. Calif. interest in maintaining a self-supporting ins. program is a legitimate one, and provides a non-invidious basis for the state’s decision not to create a more comprehensive program. 4. The exclusion’s distinction is not based on sex but on pregnancy (those who don’t have pregnancy-related disabilities are both men and women). C. Affirmative Action Based on Gender 1. Gender Classifications Based on Role Stereotypes a. Orr v. Orr (1979) 1. A requirement that only husbands pay alimony discriminates on the basis of sex and therefore must serve important govt objectives and must be substantially related to achieving those objectives. 2. The goal of helping needy spouses and compensating women for past discrimination during marriage are legitimate goals, but the law is insubstantially related to those objectives b/c Alabama already requires individual hearings to determine need, etc. Needy males could be helped out as well. b. Miss. U. for Women v. Hogan (1982) 1. The University typically barred men from enrolling. Hogan applied for admission to the nursing program and was denied simply b/c of his gender. He sued for violation of the EPC.

Con Law Outline 14 2. Intermediate scrutiny must be used in analyzing discrimination against men, as well as women. The govt. objective must necessitate the statute. 3. The state’s purpose was to compensate for past discriminatory practices against women. However, over 90% of the nursing profession is female. 4. The contention that the admitting men would tend to adversely affect the women is undermined by the practice of allowing men to audit classes. c. Michael M. v. Superior Ct of Sonoma County (1981) 1. Calif. penal code prohibited sex w/ a female under 18, but not w/ a male under 18. 2. The leg. purpose for the statute was to prevent teenage pregnancies. The leg. concern is entitled to great deference. The state has a strong interest in preventing such pregnancies. Young men and women are not similarly situated w/ respect to the problems inherent in sexual intercourse. 3. Brennan Dissent: There’s no reason why a gender-neutral law would not serve the objectives of the law. In fact, would be a greater deterrent to sexual intercourse. 4. Stevens Dissent: The fact the female has a greater risk from sex is more reason to apply the law against her. d. Rostker v. Goldberg (1981) 1. Congress has a legitimate reason for limiting draft registration to women- only men are eligible for combat. 2. Ct generally gives deference to Congress and the Pres. in matters of national security. 2. Gender Classifications Benefiting Women a. Califano v. Webster (1977) 1. Social Security Act allows women to eliminate additional low- earning yrs from calculation of their retirement benefits. 2. Govt has an important objective of reducing disparity in economic condition b/w men and women. Allowing women, who have been unfairly hindered from earning as much as men, to eliminate additional low-earning yrs works directly to remedy some part of the effect of past discrimination. b. Nguyen v. Immigration and Naturalization Service (2001) 1. For citizenship for a child born outside of the U.S. where the father is a U.S. citizen and the mother is not, paternity must be acknowledged or established. However, there is no such requirement if the mother is a U.S. citizen. 2. The majority applies intermediate scrutiny and finds that 2 important govt interests are served: (1) assuring a biological parent-child relationship exists (w/ the mother this is verifiable by the birth), and (2) assuring the opportunity for a real meaningful relationship. 3. Dissent: Wants there to be an “exceedingly persuasive justification” for the gender classification. Must be shown that these are the “actual” leg. purposes. Con Law Outline 15 D. Alienage Classifications 1. Aliens are protected from discrimination b/c the EPC explicitly says that no “person” shall be denied EP of the laws- does not mention the word “citizen.” The general rule is that strict scrutiny is applied, however there are several exceptions. 2. Graham v. Richardson (1971) a. Welfare benefits were challenged under the EPC b/c they limited benefits to U.S. citizens. b. Resident aliens as well as U.S. citizens are protected under the EPC and any violation must be justified by a “compelling” state interest. c. A state’s desire to preserve limited welfare benefits for its own citizens is unreasonable and inadequate, since resident aliens contribute to state revenue. E. Exceptions: Classification Governed by Rational Basis 1. Alienage classifications related to self-government and the democratic process. a. Foley v. Connelie (1978) 1. A N.Y. statute required that police officers be American Citizens. 2. This does not violate the EPC. Restraints imposes on aliens are not inherently invalid or suspect. States have the power to exclude aliens from participating in its political institutions and rational basis review is enough. 3. B/c police officers participate in executing policy and enforcing laws, and are invested w/ substantial discretionary powers, the police function is one where citizenship bears a rational relationship. 4. Dissent: Police officers execute policy to the extent that other public employees do. Should be limited to setting, not carrying out public policy. b. Ambach v. Norwick (1979) 1. N.Y. did not allow aliens to become elementary and secondary public school teachers. 2. Some state functions are so bound up w/ the operation of the state as a governmental entity as to permit the exclusion from those function s of all persons who have not become part of the process of self-govt. 3. Although aliens are a suspect class, the standard to justify is lowered to rational basis when a governmental function is involved. 4. Teachers have an obligation to promote civic virtue and the state has an interest in furthering this. 2. Congressionally Approved Discrimination: Rational basis where the discrimination is the result of a federal law. 3. Undocumented Aliens and EP Plyler v. Doe (1982) a. Texas law prohibited state funds to educate undocumented aliens. b. Texas justification: (1) it was designed to protect the state from an influx of illegal immigrants, (2) it would relieve some of the special burdens which educating undocumented aliens imposes on the educational system, and (3) it would relieve the state of the burden of educating Con Law Outline 16 children who are less likely to remain in the state and contribute than other children. c. Standard of Review: undocumented aliens are not a suspect class and there is not fundamental right to education. Must be rationally related to a substantial state interest. d. This statute does not advance the interests asserted by the state. Denying children who are not responsible for their status an education will stigmatize them w/ illiteracy and they will not be able to participate in civic institutions. The cost to our nation will be greater than providing them and education. e. Dissent: Can’t be said that law is irrational. 4. Other Types of Discrimination that Receive Ration Basis Review a. Age Classifications b. Wealth Discrimination c. Sexual Orientation IV. Fundamental Rights A. Introduction and Analytical Framework 1. Strict scrutiny applies when a fundamental right is being infringed upon. Don’t care about the classification, care that some people don’t have access to something so fundamental. 2. If a law denies a right to everyone, the DP would be the best grounds, but if a law denies a right to some, while allowing it to others, the discrimination challenged under EP. 3. Substantive v. Procedural Due Process a. Substantive- the govt must justify an infringement by showing that its action is sufficiently related to an adequate justification. b. Procedural- when the govt takes away a person’s life, liberty, or prop it must provide adequate procedures. 4. Analytical Framework a. Is there a fundamental right? 1. Originalism- limits rights to those stated in the text or intended by the framers. 2. Moderate Originalism- judiciary should implement the framers’ general intent, but not necessarily their specific views. 3. Non-Originalism- it’s permissible for the ct to protect fundamental rights that are not enumerated in the Const or intended by the drafters. b. Is the constitutional right infringed? Is the burden sufficient enough? c. Is there sufficient justification for the government’s infringement of a right? Compelling interest? d. Is the mean’s sufficiently related to the purpose (ends)? Is it necessary to achieve the objective/least restrictive means? B. Constitutional Protection for a Right to Education 1. See Plyler v. Doe 2. San Antonio Independent Sch. Dist. v. Rodriguez (1973) a. ∏ brought this action on behalf of school children throughout Texas who are members of minority groups or who are poor and reside in school districts having a low prop tax base.

Con Law Outline 17 b. Do school finance systems based upon differing prop tax rates in diff school districts violate EP? c. A group is not denied a right; they just receive a lower quality of it. EP does not require absolute equality or precisely equal advantages. d. ∏ argued that edu is a fundamental right b/c it is necessary to practice other fundamental rights (voting, free speech, etc.). Ct finds that it is not fundamental b/c it is not explicitly guaranteed in the Const. and there is no basis for finding it to be implicitly guaranteed. e. Ct finds that poor people are not a suspect class- none of the traditional characteristics exist. f. Brennan Dissent: A right is fundamental not only if it is explicitly or implicitly in the Const, but also if it is important in effectuating constitutionally guaranteed rights. 3. State Constitutional Cases a. Edgewood Independent Sch. Dist. v. Kirby (printed) (1989) 1. Disparities in edu districts is challenged under the Texas Const. which states, “…it shall be the duty of the Leg of the State to est. and make suitable provision for the support and maintenance of an efficient system of public free schools.” 2. There is a fundamental right to edu in Texas. Efficient means causing effects, producing results, actively operative, not inactive, slack or incapable, characterized by energetic and useful activity. 3. Ct says it’s unconst., but it’s up to the Leg. on how to fix it. b. Serrano v. Priest (printed) (1976) 1. Disparities in edu overturned under Calif Const. guaranteeing EP. 2. Ct interprets Calif Const. to ensure more EP than the Fed Const. C. Constitutional Protection for Family Autonomy 1. The Constitutional Right to Marry a. Loving v. Virginia (1967) 1. Virginia law prohibited white people from marrying outside of their race. 2. In addition to EP analysis the ct applies a DP analysis that says that marriage is a fundamental right entitled to strict scrutiny. 3. Law burdens marriage by limiting choice. 4. The 14th Amend requires that the freedom of choice to marry not be restricted by invidious racial discriminations. What about non-invidious discrimination, like requiring permission to marry for those under 18? b. Zablocki v. Redhail (1978) 1. Wisconsin statute required that any resident having minor issue not in his custody and which he is under an obligation to support by any ct order or judgment get a ct order before he could marry. 2. When a statutory classification significantly interferes w/ the exercise of a fundamental right, such as the rt to marry, it must pass strict scrutiny. 3. Two interests are asserted: (1) permission-to-marry proceedings furnish an opportunity to counsel the applicant as to the necessity

Con Law Outline 18 of fulfilling child support, and (2) welfare of the child is protected. 4. These interests unnecessarily impinge on the rt to marry b/c it merely prevents applicant from getting married w/o gaining anything for the child and the state already has other means for exacting compliance w/ support obligations. 2. Protection for Sexual Orientation a. Bowers v. Hardwick 1. Georgia statute made sodomy illegal and two men were arrested under it. 2. Is there a fundamental right to privacy that extends to sexual intercourse b/w homosexuals? No. b. Lawrence v. Texas (2003) 1. Texas statute made sodomy b/w same sex partners illegal. 2. Not decided on EP (gender discrimination), but DP right to privacy. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual. 3. O’Connor Concurs: She was in the Bowers court, so she must distinguish. She says she would decide the case on EP b/c the law singles out parties based on gender. Laws can’t differ as to hetero and homosexuals. c. Goodridge v. Dept. of Public Health (2003) 1. Struck down a law that prohibited same-sex marriage as against the Mass. Const. 2. Ct proceeds as if there is a right to marriage. Ct says there are DP and EP issues, but doesn’t decide on which one to decide on. 3. Ct states that the marriage ban does not even meet the rational basis test. 4. The right to marry means little if it does not include the right to marry the person of one’s choice, subject to appropriate gov’t restrictions in the interests of public health, safety and welfare (from Perez and Loving). 5. Concurrence: this is gender discrimination - if I was a man I could marry Martha. 6. Dissent: anyone can get married, although not to anyone you want. 7. Cordy Dissent: you are changing the definition of marriage. 8. Differs from Loving where the purpose was white supremacy. There is no invidious purpose on gender in this case. V. The First Amendment: Freedom of Expression A. Introduction: Speech as a Fundamental Right 1. 1. 1st Amend.: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Govt for a redress of grievances.” 2. Despite the use of “shall” it is not absolute. 3. There are times when conduct can be “speech,” such as wearing an arm band to graduation to protest a war. Con Law Outline 19 4. Impossible to go back to a strictly originalist approach to the 1st Amend. What the forefathers did does not tell us much. Seditious- encouraging or enticing someone to overthrow the govt. 5. Why Free Speech is a Fundamental Right: a. Self-Governance: crucial in a democracy. b. Discovering Truth: truth is most likely to emerge from the class of ideas. -“Marketplace of Ideas” is criticized that those w/ money control the marketplace. Clash of free speech and equality. c. Advancing Autonomy: “to engage voluntarily in a speech act is to engage in self-definition of expression” -Rather than a means to an ends, it is of itself “self-expression” and integral to a free society. d. Promoting Tolerance: tolerance is a basic value in our society and protecting unpopular or distasteful speech is itself an act of tolerance. B. Methodology 1. Content-Based v. Content-Neutral a. The govt cannot regulate speech based on its content. The govt cannot restrict expression b/c of its message, its ideas, its subject matter, or its content. Content-based regulations are presumptively invalid. Strict Scrutiny is generally used for content-based restrictions, while intermediate scrutiny is used for content-neutral laws. b. Turner Broadcasting System v. Fed. Communications Com. (1994) 1. The Cable Television Consumer Protection and Competition Act of 1992 required cable systems to devote a portion of their channels to local broadcast television stations. 2. ∏ argued that the must-carry rule regulates cable speech in two respects: (1) the rules reduce the number of channels over which cable operators exercise unfettered control, and (2) they render it more difficult for cable programmers to compete for carriage on the limited channels remaining. 3. Strict Scrutiny  Content v. Intermediate Scrutiny  Neutral Burden on Speech 4. Is this must-carry rule content neutral? Justice Kennedy states that the rule places no burden on the content of speech. The govt’s important interest (threat to the economic health of local broadcasting) meets the burden on content-neutral speech. There is no adequate alternative available. 5. O’Connor Concur in part and Dissent in part: The rule favors local broadcasters over cable programmers. The statute is not narrowly tailored to serve a substantial interest in preventing anticompetitive conduct. c. Boos v. Barry (1988) 1. D.C. code prohibits the display of a sign w/in 500 ft. of a foreign embassy if the sign brings such foreign govt. into “public disrepute.” 2. Govt. contended that the statute was not content based b/c the govt. was not itself selecting b/w viewpoints; the permissible message on a picket sign is determined solely by the policies of a foreign govt. Con Law Outline 20 3. The govt. has determined that an entire category of speech, signs critical of foreign govts is not permitted. Because this regulates speech due to its potential primary impact, we conclude it must be considered content-based. 4. Strict Scrutiny: protecting the dignity of foreign diplomatic personnel is not a compelling governmental interest. 5. Purpose of the law: statute aimed at the ideas- the affect of the communication, which leads toward content-based. 6. Didn’t bring up issues of national security. d. Simon & Schuster v. N.Y. State crime Victims Board (1991) 1. N.Y. passed a restriction that would take proceeds from criminals who wrote about their crimes (inspired by Son of Sam). 2. This was a content specific restriction that required strict scrutiny. Ct says that there is a compelling govt interest to protect victims and not allow criminals to profit from their crimes, but that it is not narrowly tailored. 3. This law is overinclusive and some stuff will never get written, such as some of the works by Martin Luther King, Jr., St. Augustine, Thoreau, Jesse Jackson, and Malcolm X. e. City of Renton v. Playtime Theatres, Inc. (1986) 1. Adult theatres could not be set up w/in 1,000 ft. of certain public and private facilities. Argued that this limits free speech. 2. Is it content-neutral? City argued that it was “time, place, and manner” restriction. The business being restricted are those defined by their content. 3. Ct finds that this is not content-based b/c purpose of the ordinance was to prevent the secondary effects of the blight associated w/ adult theaters, not the content of the films. 4. Dissent: Limitations on the location of a movie theater are based exclusively on the content of the films shown there. 5. Ct seems to see speech that verges on obscenity as content- neutral. f. U.S. v. American Library Assoc., Inc. (2003) 1. The Children’s Internet Protection Act (CIPA) required libraries to install software to block adult images in order to receive federal funding. 2. Overinclusive- often blocks non-obscene/pornographic material. Majority points out that patron can get the site unblocked. 3. This is an inherently content sensitive situation b/c libraries naturally have to make decision on what books to have. Ct doesn’t want to apply strict scrutiny to this type of action (not a public form). ALA and dissent make the argument that the Internet is like a public form where all the info is already there and govt is choosing what to remove. 2. Prior Restraint a. Prior Restraint is an administrative system or a judicial order (i.e. injunction that you can’t march- not just violation of a law, but also in contempt of ct.) that prevents speech from occurring. Presumptively unconst. Con Law Outline 21 b. Collateral Bar Rule- a person violating an unconst. law may not be punished, but a person violating an unconst. prior restraint generally may be punished. A ct order must be obeyed until it’s set aside, and persons subject to the order who disobey it may not defend against the ensuing charge of criminal contempt on the ground that the order was erroneous. c. Near v. State of Minn. (1931) 1. Minn. law does not allow publication of “malicious, scandalous and defamatory” periodicals. Law allows for an injunction against such publications. 2. Prior restraint on the rt to publish would destroy freedom of the press (truth is not a requirement). A person can publish anything so long as he is prepared to respond in damages for that which is improper, mischievous, or illegal. 3. Prior restraint will only be tolerated in exceptional circumstances, such as treats to national security or the incitement to acts of violence or overthrow by force of an orderly govt. d. NY Times v. U.S. (1971) 1. The Times gets a hold of classified military documents regarding the Vietnam War. 2. Any system of prior restraint of expression comes to this Ct bearing a heavy presumption against its constitutional validity. 3. 6-3 let the articles be published and suit can be brought afterward. 4. Black and Douglas: History and lang of the 1st Amend support the view that the press must be left free to publish news, whatever the source w/o censorship. 5. Brennan: Only allowed if proof of imperiling safety. 6. Stewart and White: Exec. Govt. should not have all the power to decide what info. can be known. 7. Dissent of Harlan and Blackmun: Justices can’t even read the papers in the short time, how can they make a decision. e. Nebraska Press Assoc. v. Stuart (1976) 1. Attorneys in a murder trial request a gag order, so that the jury pool is not tainted. The trial ct restricted the press in 5 areas. 2. Compelling state interest is the guarantee of a fair trial (6th Amend.). 3. Prior restraint on freedom of the press may be used only where less inhibiting measures to protect the rt to a fair trial are unavailable. SC says that while this may influence the jury pool, there were other things that could be done to ensure an impartial jury (least restrictive): a. Change venue. b. Postponement of trial to let public attention subside. c. Screen out those w/ fixed opinions. d. Clear instructions. 4. Prior restraint probably won’t work anyway b/c in such a small town rumors will spread. 5. Test: Nothing else works and this will work. Nothing has actually passed this test. Con Law Outline 22 f. Alexander v. U.S. (1993) 1. A porn dealer was convicted under a RICO law and obscenity. All of his merchandise related to the RICO crime (obscene and non-obscene- part of the enterprise) was confiscated and destroyed. Alexander claims this is a violation of Free Speech. 2. This is not a prior restraint, but a subsequent punishment (did not forbid expression before it occurred). RICO is blind to the content. Nothing says that he can’t sell porn in the future, just not any related to this enterprise. 3. These laws have been challenged on Due Process and Cruel and Unusual Punishment. C. Unprotected and Less Protected Speech 1. Expressive Conduct a. Act as speech: (1) intent to convey a specific message, and (2) there is a substantial likelihood that the message would be understood by those who view it. b. U.S. v. O’Brien (1968) 1. O’Brien burnt his draft card in a demonstration against the Vietnam War. He was arrested in violation of a law prohibiting the destruction of draft cards. 2. Important govt interest: a. Proof of registering for the draft. b. Certificates facilitate communication b/w registrants and local boards. c. Continual reminders that the registrant must notify his local board of any change of address, etc. d. To prevent it from being used for deceptive purposes. 3. Must determine whether the attempted regulation of the nonspeech element also impermissibly inhibits the speech aspect. An incidental restriction of speech can be justified where the govt can show a substantial interest in furthering a const power which is not directed at the suppression of speech. 4. Ct found that the statute necessary and proper to carry out a vital govt interest. c. Texas v. Johnson (1989) 1. Johnson was arrested after burning a U.S. flag while at a political protest against the Reagan administration’s policies on nuclear war, under a Texas law. 2. Expressive Conduct? Yes. Is there a compelling state interest? No. There was no public unrest. Not justified as protecting the integrity of the flag. 3. Dissent: The flag is a unique symbol of our national heritage and deserves special protection. Johnson’s acts had a tendency to incite a breach of the peace. d. Buckley v. Valeo (1976) 1. Campaign contribution limitations were challenged as an unconst violation of their 1st Amend rights of freedom of expression and association.

Con Law Outline 23 2. A limitation on contribution entails only a marginal restriction on the contributor’s ability to engage in free communication, but a restriction on the amount of money a person or group can spend on political communication reduces the quantity of expression, which cannot be upheld. 3. Reporting and disclosure requirements are upheld by the compelling govt interest in deterring corruption. 2. Incitement of Illegal Activity a. Clear and Present Danger Test 1. Schenck v. U.S. (1919) a. During a time of war, Schenck mailed circulars to draftees to influence them to obstruct the carrying out of the draft. b. The question is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. c. It is a question of proximity and degrees. During war, things that could be said during peaceful times may be such a hindrance to the war effort that they will not be permitted. 2. Frohwerk v. U.S. (1919) a. Frohwerk published a paper that was critical of the U.S. involvement in WWI in violation of the Espionage Act. b. His conviction was upheld b/c the ct was unable to determine the desired result of various articles or if it would influence masses of people. 3. Abrams v. U.S. (1919) a. During WWI, the U.S. sent forces to Russia following the overthrow of the Czarist govt as part of an operation against Germany. Russian immigrants in the U.S. circulated literature advocating a general strike in ammunition plants to hinder U.S. effort. The immigrants were charged under the Espionage Act for inciting actions that hindered the U.S. war effort. b. Limited Speech: 1. Danger  seriousness (clear and present) 2. Imminent 3. Incitement 4. Intent  action v. advocating c. The U.S. may restrict speech that has the intended effect of hindering the U.S. in a war effort by means of riots and sedition. d. Holmes Dissent: Seems to say that these ideas are so ridiculous that there is no need to restrict it. b. Reasonableness Approach 1. Gitlow v. NY (1925) a. Gitlow was convicted under a NY act for printing articles that advocated the accomplishment of a Communist revolution. Con Law Outline 24 b. Under its police powers, a state may forbid speech if it has a tendency to result in action that’s dangerous to public security, even though it presents no “clear and present danger.” c. Test: A state can reasonably restrict speech if it has a tendency to result in action that is dangerous to public security. d. Holmes Dissent: Every idea is an incitement, but there must be imminent danger. 2. Whitney v. Calif. (1927) a. Whitney was a member of radical communist party. He was arrested at a convention in violation of the Calif. Criminal Syndicalism Act, which held it unlawful to organize a group that advocated unlawful acts of violence as a means of effecting change. b. A state may in the exercise of its police power, punish abuses of freedom of speech where such utterances are inimical to public welfare as tending to incite crime, disturb the peace, or endanger organized govt through violent overthrow. c. Every presumption is to be indulged in favor of the validity of the statute, and it may not be declared unconst. unless it is an arbitrary or unreasonable attempt to exercise the authority vested in the state. c. Risk Formula Approach: where an offense is specified by a statute in nonspeech or nonpress terms, a conviction relying upon speech or press as evidence of violation may be sustained only when the speech of publication created a clear and present danger of attempting or accomplishing the prohibited crime. d. Brandenburg Test: The constitutional guarantees of freedom of speech and freedom of press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce or incite such action. Ct tries to draw line b/w advocacy (thoughts) and incitement (action). 3. Fighting Words/Hate Speech a. Chaplinsky v. New Hampshire (1942) 1. Chaplinsky was a Jehovah’s Witness who was distributing info on the streets and called a marshal a “God damned fascist.” 2. By allowing certain things to be said you will illicit such a violent response that it should not be allowed. 3. Govt may limit such words whose very utterance inflict injury or tend to incite immediate breach of the peace. 4. Can limit words that the ct does not see as useful: lewd and obscene, profane, libelous, and insulting or fighting words. b. Gooding v. Wilson (1972) 1. A Georgia statute make is illegal to use opprobrious (disgraceful) and abusive lang.

Con Law Outline 25 2. Speech can only be limited in w/in narrowly limited classes, and this statute limits words w/ a greater reach than “fighting” words. The statute is too broad in the words that it limits. c. R.A.V. v. City of St. Paul, Minn. (1992) 1. Fighting words that are not constitutional b/c they are impermissibly content-based. Limits a certain kind of speech (what is obscenity?). 2. Statute criminalizes placing a symbol or object on prop that the person knows will arouse anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender (cross burning). 3. This statute was found to be unconst. b/c it only limited speech directed toward particular groups (i.e. doesn’t discuss age or sexual orientation). d. Virginia v. Black (2003) 1. Statute prohibits cross burning w/ the intent to intimidate and there is a presumption of intent to intimidate when a cross is burned. ∆ must rebut this presumption. 2. The prima facie presumption ignores all of the contextual factors that are necessary to decide whether a particular cross burning is intended to intimidate. The 1st Amend does not permit such a shortcut. 4. Sexually Oriented Speech/Obscenity a. Obscenity is not protected speech. Anything that has to do w/ kids, even if not obscene, is heavily regulated. Other sexual oriented speech may be regulated (i.e. zoning for adult shops). b. Catharine MacKinnon and Andrea Dworkin 1. Pornography is a form of sex discrimination that violates the EPC. 2. Depiction of women in subordination can be restricted b/c 1st Amend is countered by EPC. c. Roth v. U.S. (1957) 1. Obscenity is not protected under the 1st Amend b/c it has no socially redeeming value and it appeals to prurient interest (lustful thoughts). 2. Limits what people can think- prurient interests are subjective. 3. Dissent (Douglas and Black): consistently argue that there is nothing wrong w/ prurient interests and limiting it goes against the 1st Amend. d. Paris Adult Theatre v. Slaton (1973) 1. Two movie theaters which showed adult films to those 21 or over were enjoined under an obscenity statute. 2. A state can forbid the dissemination of obscene material to consenting adults in order to preserve the quality of the community and to prevent the possibility of resulting antisocial behavior. e. Miller v. Calif. (1973) 1. Ct attempts to define obscenity: Works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual

Con Law Outline 26 conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value. 2. Guidelines: a. Whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest b. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and c. Whether the work, taken as a whole, lacks serious literary , artistic, political, or scientific value. 2. Local community standards may define these terms. 5. Commercial Speech a. Valentine v. Christensen (1942): Orig. there was no 1st Amend protection to commercial speech. b. Vir. State Board of Pharmacy v. Vir. Citizens Consumer Council (1976) 1. Pharmacists were prevented from advertising prescription drugs under Virginia law. 2. Blackmun decides that this is an infringement on the 1st Amend. b/c this is useful info that would help consumers make economic choices (drug prices vary from $2.59 to $6 depending on outlet). Freedom of speech extends to the recipients as well as the source of the speech. 3. Commercial speech is not protected if false or deceptive and may be limited as to time, place, and manner. 4. Rehnquist Dissent: We will have drug co. pushing drugs through advertising. These are advertisements- not the core of “speech.” Only should have to pass rational basis. c. Commercial Speech is a separate category. What is Commercial Speech? Product being promoted, proposes a commercial transaction, economic motive, etc. d. Central Hudson Test (similar to intermediate scrutiny): 1. Is the speech advertising illegal activities or false or deceptive advertising which are unprotected by the 1st Amend.? 2. Is the govt’s restriction justified by a substantial govt interest? 3. Does the law directly advance the govt’s interest? 4. Is the reg of speech no more extensive than necessary to achieve the govt’s interest? –not least restrictive. D. Places Available for Speech: Public, Limited & Non-Public Forms 1. Intro a. Deals w/ when and where a person can get on their soapbox. Generally, no 1st Amend rights on private prop. b. Public Prop: 1. Traditional Public Form- generally have a right to speech activity there (may be limited by T, P, & M). 2. Limited/Designated Forms- govt has converted prop into a public form and can’t limit who may speak, but doesn’t have to stay a public form (i.e. classroom open to certain student groups, must be open to all). Con Law Outline 27 3. Non-Public Forms- speech may be limited (i.e. military, prisons, schools). c. The govt may regulate speech in public forums when: 1. The regulation must be content neutral unless the govt can justify a content-bases restriction by meeting strict scrutiny. 2. It must be a reasonable time, place, or manner restriction that serves an important govt interest and leaves open adequate alternative places for speech. 3. A licensing or permit system for the use of public forums must serve an important purpose, give clear criteria to the licensing authority that leaves almost no discretion, and provide procedural safeguards such as requirement for prompt determination of license request and judicial review of license denials. d. Police Dept. of Chicago v. Mosely (1972) 1. Ordinance outlaws picketing near a school, except peaceful labor picketing. 2. Impermissible picketing is not in terms of time, place, and manner, but in terms of subject matter (not content-neutral). 3. The ordinance is not Const. under EP b/c there is a fundamental 1st Amend right being abridged. Strict scrutiny b/c there is 1st Amend right and there is differential treatment based on content. 4. If it didn’t allow any picketing, regardless of content, it would probably be const. as TP&M. e. Hill et al v. Colorado (2000) 1. Colorado statute did not allow person to “knowingly approach” w/in 8 ft. of another person w/o their consent “for purpose of passing a leaflet, displaying a sign, educating, counseling or engaging in oral protest” at a health care facility. 2. Mostly aimed at anti-abortion protesters. However, statute is neutral on its face b/c limits any kind of protester. “Educating and counseling” verges on content. 3. A statute may be upheld as a valid t,p,&m reg. where it serves govt interests that are significant and legitimate, the restrictions are content-neutral, and the statute is narrowly tailored to serve such interests, leaving open ample alternative channels for communication. 4. Ct weighs free speech interests w/ the interests of patients access to health care facilities. Willing v. unwilling audience. 5. Scalia Dissent: Looks at leg. intent to say that it was directed at pro-lifers. f. Ward v. Rock Against Racism (1989) 1. Bands playing in the Bandshell in Central Park were required to use sound amplification equipment and a sound technician provided by the City. 2. Ct says this is a valid t,p,m restriction which need not be least restrictive alternative, so long as the restrictions are content neutral, narrowly tailored to serve a significant govt interest, and it leaves open ample alternative channels for communication. VI. The First Amendment: Freedom of Association Con Law Outline 28 A. Introduction 1. Is there a right to association? This is not an enumerated right, but “freedom to engage is assoc. for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the DPC of the 14th Amend, which embraces freedom of speech.” 2. If you’re going to express yourself, part of that includes the ability to influence others. One of the ways to amplify your message is through assoc. 3. You have the right to assoc., unless you have specific intent to engage in unlawful activity. Can’t assoc. to advance expression that is illegal. B. Laws Prohibiting and Punishing Membership: The Ct has held that the govt may punish membership only if it proves that a person actively affiliated w/ a group, knowing of its illegal objectives, and w/ the specific intent to further those objectives. C. Laws Requiring Disclosure of Membership 1. NAACP v. State of Alabama, ex rel. Patterson (1958) a. There was a ct order requiring the NAACP to hand over their Alabama membership list. They agreed to hand over info regarding their employees and those who hold official positions, but not their general membership list b/c it would lead to reprisals against the members and hinder the rt to assoc. b. There would be severe predictable consequences (economic reprisal, loss of employment, and threat of physical coercion) at this time if it was known that you were a member of the NAACP and the govt would effectively “chill” membership, so must meet strict scrutiny. c. Privacy of its members is here so related to the rt of members to assoc freely w/ others in so doing as to come w/in the protection of the 14th Amend. Alabama fell short of showing a controlling justification for the deterrent effect on the free enjoyment of the rt of assoc which disclosure of membership lists is likely to have. 2. Campaign Finance Disclosure: a. An exception where the rt of assoc must be disclosed b/c there is a compelling govt interest to prevent corruption and the public needs to know where the candidates get alliances. b. Exception: where there’s reason to believe that the disclosure will chill contributions to minor party or candidate. D. Compelled Association 1. Abood v. Detroit Board of Ed. (1977) a. All govt employees had to pay a union fee, regardless of whether or not they were members. b. Employees must pay for administrative costs, even if they don’t support the ideological causes. No one would pay for the union if they could just benefit w/o paying. c. Employees don’t have to pay for activities that go beyond collective bargaining activities. Hard line to draw. d. If you are a member, you have no choice where your dues go. 2. Board of Regents of the U. of Wisc. v. Southworth (2000) a. Students do not want to pay a mandatory fee that supports student organization, which in part engage in political or ideological speech. b. Wisc. argues that the extracurricular activities are essential to education. You’re paying for your ed. and this is part of it. Con Law Outline 29 c. Content does not come from the University, but the students themselves. This content neutrality allows the University to have this program. d. Case was remanded as to how money was distributed – majority voted on it. This allows the majority expression to rule, instead of giving money equally to every group. E. Laws Prohibiting Discrimination 1. Deals w/ private entities that are confronted w/ a law which does not allow them to discriminate. Groups claim that freedom of assoc. protects their right to discriminate and exclude whoever they want. Technically as a private party, they can do what they want, except… 2. Roberts v. U.S. Jaycees (1984) a. The Jaycees were an all male organization. One of the branches began to let women in and they were going to be dissolved by the National Org. b. The right to associate for expressive purposes may be limited by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas that cannot be achieved through means significantly less restrictive of associational freedoms. c. The states compelling interest is prohibiting and correcting injustices based on sexual discrimination. No less restrictive means was shown to exist by the Jaycees. d. The purpose of the organization is to promote personal development of young men. It is argued that by allowing women to vote in the organization the purpose may change. Ct says that it is not against the organization’s interests to admit women. e. Association Test: 1. Continuum of private, personal assoc. (who your going to marry) to instrumental (public) assoc.- less protection as more public. Look at how selective the group is in who it allows in. 2. Who is this organization? Is this going to affect their purpose? 3. Hurley v. Irish-Am. Gay, Lesbian, and Bisexual Group of Boston (1995) a. The Irish Gay group wanted to join the annual St. Patrick’s Day parade. The private org. running the parade would not allow them to march. b. Private citizens organizing a parade may not be forced to include groups whose message they don’t wish to convey. A parade is a form of expressive speech protected by the 1st Amend. 4. Boy Scouts of Am. v. Dale (2000) a. A group may constitutionally exclude an unwanted person if forced inclusion would infringe the group’s freedom of expressive assoc. by affecting in a significant way the group’s ability to advocate public or private viewpoints. b. If a group is engaged in expressive association, it must then be determined whether the forced inclusion would significantly affect the group’s ability to advocate public or private viewpoints. c. Ct reads the Boy Scout’s oath “to keep myself physically strong, mentally awake, and morally straight” to be contradicted by homosexuality and would be burdened by inclusion. VII. First Amendment: Freedom of Religion A. Introduction: What is Religion?

Con Law Outline 30 1. Establishment Clause and Free Exercise Clause: Same definition for religion in both clauses. On one side the govt protects free exercise of religion, but does this advance religion in violation of the Establishment Clause. 2. Religion a. Must be a sincerely held belief. b. Which plays a role which occupies the space of religion (i.e. ethics, philosophy). c. Don’t need to follow established rule of a sect. 3. U.S. v. Seeger (1965) a. Seeger claimed that he was conscientiously opposed to participation in war by reason of his religion, even though he does not necessarily believe in God. b. The test of belief “in relation to a Supreme Being” is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption. 4. U.S. v. Ballard (1944) a. Ballard claims that if you send him money he can cure you w/ supernatural powers. b. Govt can’t question whether or not Ballard can actually heal people. Persons may believe what they cannot prove, and do not have to prove their religious beliefs. c. Ct cannot question truth of religious beliefs. Fraud will fall on the issue of if the belief is sincere. B. The Free Exercise Clause 1. Sherbert v. Verner (1963) a. ∏ was discharged by her employer b/c she refused to work on her Sabbath. She was then denied unemployment benefits. b. Test: 1. Is there a burden on religion? 2. If yes, is there a compelling govt interest? c. Dissent: govt is basically endorsing religion by making exceptions from laws. 2. Employment Division, Dept. of Human Resources v. Smith (1990) a. Two people were fired for using peyote as part of a religious ceremony. They were then denied unemployment benefits b/c they were discharged for “misconduct.” b. Test: Is it generally applied and facially neutral? If not, must pass strict scrutiny. c. Religious belief v. religious conduct. Conduct will not be afforded as much protection as beliefs. d. Ct said we don’t even have to apply strict scrutiny when the burden is on conduct and the law is neutral on its face (benign purpose- applies generally). e. Didn’t overrule Sherbert, but there’s little of it left. 3. Other cases a. Co-mingling of races is against our religion. Govt has a compelling interest in promoting racial equality.

Con Law Outline 31 b. Amish didn’t want to pay SSI. Ct again had a compelling interest. However, Amish did not have to follow compulsory school laws. Ct did not find a compelling govt interest to overcome this. c. Lyng v. Northwest: while it may not be compelling that the govt put the road in the particular place, it is compelling to give deference to the govt. 4. Church of the Lukumi Babalu Aye v. City of Hialeah (1993) a. Law prevented killing animals for non-consumption purposes. This interfered w/ the Santeria religion b. Face of the statute applied to all people, however, used words like “sacrifice.” Ct says it’s clear that the motivation of the law was to prevent practices of the Santeria religion. c. Neutral and generally applicable laws need not meet a higher level of scrutiny. However, the restrictions on these practices were b/c of religion. While this was not clear on the face of the statute, it’s clear from the expressed concerns of residents and council members that it was not neutral or generally applicable. Practically the only conduct prohibited by the ordinances is that exercised by the Santeria religion. d. The statutes in no way promoted the legitimate concerns of public morals, peace, or safety. C. The Establishment Clause 1. Theories of the Establishment Clause a. Strict Separation- to the greatest extent possible govt and religion should be separated. b. Neutrality Theory/Endorsement Test 1. The govt must be neutral towards religion; the govt cannot favor religion over secularism or one religion over others. 2. Symbolic Endorsement Tests a. from the perspective of a hypothetical observer who is presumed to possess a certain level of info that all citizens might not share. b. If a reasonable person could perceive a govt endorsement of religion from a private display, then the State may not allow its prop to be used as a forum for that display. c. Accommodation- the ct should recognize the importance of religion in society and accommodate its presence in govt; the govt violates the Establishment Clause only if it literally establishes a church or coerces religious participation. 2. Theories Applied a. County of Allegheny v. Am. Civil Liberties Union (1989) 1. The County permitted the erection of a nativity scene, a menorah, a Christmas tree, and a sign stating “Salute Liberty” on public prop. 2. Religious symbols may not be on public prop if they have the effect of promoting religion. Whether a symbol promotes religion depends on its context. Many of symbols promote religion as well as culture and secularism, which is permissible to dilute any religious overtones to conclude that it is permissible under the Est. Clause. b. The Pledge Cases Con Law Outline 32 1. Indoctrination? –unlike money, it’s repeated every day. 2. Is it establishing religion? Is this really religion? c. Govt Discrimination among Religions: well est. that govt cannot favor one religion over others. d. Lemon v. Kurtzman (1971) 1. Statutes provided financial support to nonpublic elementary schools. 2. Lemon Test (any one alone will violate the Est. Clause): a. The statute must have a secular leg. purpose. b. Its principal or primary effect must be one that neither advances nor inhibits religion. c. The statute must not foster “an excessive govt entanglement w/ religion.” 3. In order to determine whether govt entanglement w/ religion is excessive, we must examine the character and purposes of the institutions that are benefited, the nature and aid the State provides, and the resulting relationship b/w the govt and the religious authority. 4. Church-related schools are benefited by financial support of the State, leaving the State entangled in the details of administration of the same schools. 3. Govt Aid to Parochial Schools a. Agostini v. Felton (1997) 1. Public school teachers may go into private school to provide education w/o violating the Est. Clause. 2. Justice O’Connor seems to create a new test that aid to parochial schools is unconst. if: (1) the govt participates in indoctrinating religion, or (2) if the govt discriminates among religions, or (3) if there is excessive govt entanglement w/ religion. b. Mitchell v. Helms (2000) 1. Split opinion where the Ct only has a plurality (4) to lend equipment to both public and private schools. 2. The Ct considered the following criteria: (1) whether the statute results in govt. indoctrination; (2) whether the statute defines its recipients by reference to religion; and (3) whether the statute creates an excessive govt entanglement. 3. Okay if generally providing for education and available to all school, even if it might in some way be used for religious purposes. 4. O’Connor Concurrence: w/hold vote from plurality b/c it goes too far in allowing govt aid. 5. Souter Dissent: The Ct is going too far toward. This entanglement goes toward establishing religion. c. Zelman v. Simmon-Harris (2002) 1. In Cleveland, money was given to families to send children to private schools (vouchers). This tuition subsidy was challenged under the Est. Clause b/c 96% of schools the money went to were parochial schools.

Con Law Outline 33 2. The Ct (5 Justices) said that this does not violate the Est. Clause the money does not go directly to the school, but to parents who can make a decision to go to any private school. Kids could go to Magnet or Community schools, or other private non-parochial schools, or stay at regular public school and get money for tutor. 3. “Any aid that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients.” 4. Problems: forcing support of religious institutions by tax-payers.

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