Lucarelli Con Law II—Fall 2007 Prof. Dienes

Keyed (at places) to Barron, Dienes, McCormack & Redish, Constitutional Law: Principles and Policy (7th ed. 2006) Composed from: text, class notes, Barron & Dienes Black Letter Outline, and other student outlines. Errors are mine. CHAPTER 5 – LIMITATIONS ON GOVERNMENTAL POWER

§ 5.01 The Historical Prelude I. Natural and Vested Rights a. “laws of Nature and Nature’s God” (Declaration) i. Calder v. Bull (1798) – Justice Chase said “An ACT of the Legislature . . . contrary to the great first principles of the social compact cannot be considered a rightful exercise of legislative authority” 1. Natural Rights: Belief that there are limits on gov’t power not embodied by written law 2. Social compact theory – powers not delegated to the gov’t are retained by individuals as rights, if gov’t oversteps the delgated power the act is void 3. Problem with Natural Rights is its subjectivity – it invites judges to decide based on their own beliefs b. Natural Rights was often applied by courts through the concept of Vested Rights - Begin with the property right as fundamental – any law interfering with a vested right is void. i. Fletcher v. Peck: Ga. leg. was bribed to sell land to pvt cos. very cheaply. Next session of leg. passed a law rescinding. Some of the land had already been transferred to 3rd party b.f.p. MARSHALL held for the purchasers saying the Ga. law was invalid (1) By the contract clause, (2) b/c it was ex post facto, (3) because it interfered with the natural right of property 1. “the state of Georgia was restrained either by general principles which are common to all our free institutions, or by the particular provisions of the constitution . . . “ c. Natural Rights doesn’t work well today – to challenge something you need to identify a constitutional/statuory/common law limitation on gov’t II. The Original Constitution – very few express rights a. Art. I Sec. 9 prohibits revoking habeus corpus b. Art. I Sec. 9&10 prohibit Fed and State from enacting bills of attainder and ex post facto law c. Art. I Sec. 10 prohibits state impairment of the obligation of K d. Art. IV Sec. 2 P& I of citizens in the several states e. Many we consider fundamental were left out (speech, relig., marriage) i. Federalists originally rejected the Bill of Rights because of the theory that everything not specifically delegate was retained. Enumerating rights was seen as risky. ii. BoR ended up being a condition of ratification III. BoR – First 10 Amendments a. Vital Protections: Speech, Association

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b. Gaps: voting, marriage, right to work c. Does not apply to the states – Barron v. Baltimore IV. Due Process and Substantive Rights – protection of life, liberty, and property a. Should it have a substantive component? b. In England it restricted only the King and Courts, not Leg c. By the 19th Century it started carrying a lot of vested right implications – Substantive D.P. d. Cases: i. Wynehamer v. People (1856) – NY law restricting the storage of liquor. Read D.P. as codifying natural rights (esp. property) against the leg. Dissent said leg should have the power to make laws for public good and the solution was political not judicial. ii. Dred Scott: DICTA: Slaves were property, Congress cannot make law that would restrict someone’s freedom to do what they please with their property, violative of D.P. V. The Civil War Amendments – Prior to Civil War ppl had State Constitutions and “natural rights” to protect them against bad state conduct. Ackerman says this was a moment in history where the people make a fundamental change in how they were governed. 4 million slaves now emancipated with no power to protect their freedom. Southern States enacting Black codes, creating second class citizenship. Dred Scott still on the books, Blacks were not citizens capable of suing in Federal Court. The Reconstruction saw Three Amendments, Seven Statutes, and Three Reconstruction Acts. Not given full enforcement by courts and agencies a. 13th Amendment, Dec. 1865 i. Slavery and involuntary servitude shall not exist. (applies directly to private action) Sec. 2 gives Congress power to enact legislation to enforce – “Enabling Clause” 1. In doing so congress can reach conduct that would not itself violate sec. 1. Ie: Congress can reach racial discrimination when it is a badge of slavery/part of the historic residue of slavery 2. 1866 Civil Rights Act a. Persons born in the US are citizens of the US b. All person have the same right to K, sue, be parties, give evidence, inherit, purchase, hold property, etc. c. Johnson vetoes, Congress overrides b. 14th Amendment, 1868 i. Partially a response to concerns about legality of CRA ii. Persons born in the US are citizens of the US and the State of residences iii. Enabling Clause, P/I, D.P., E.P. c. 15th Amendment, 1870 i. Right to vote regardless of race, Sec. 2 = Enabling Clause d. Courts weakened the laws through Civil Rights cases, Plessy¸ Slaughterhouse

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i. Put Civil Rights on Hold until the 20th cen.

§ 5.02 Privileges or Immunities I. Slaughter-House Cases (1873) – Put an end to the notion that the P/I clause of the 14th made the Bill of Rights applicable to the states in whole. a. Rule/Significance: P/I clause eviscerated as a restraint on State power i. Facts: La. law gave monopoly on butchering to a small group. Butchers claimed this infringed their rights under 13th & 14th. Their argument was that when a law discriminates among citizens with regard to the enjoyment of basic civil rights that is involuntary servitude. ii. Held: The sole function of the P/I clause was to protect the rights secured to individuals in their relationship to the federal government in their capacity as federal citizens 1. Address and join the gov’t 2. Protection on the high sees 3. Right to assemble and petition the nat’l gov’t 4. Habeus Corpus 5. Use of nat’l waters 6. Right to change state citizenship 7. Right to vote in federal elections b. Reasonings (What rights are protected by the 14th?) i. Majority (MILLER) – (Federalism and Strict Construction) 1. 13th Amendment abolished slavery – that’s all 2. 14th – States can’t take away the National rights a. Fundamental rights are the territory of the States. Such a change would be huge, meaning a massive shift in the size of federal judiciary, and giving Congress the power over States’ determinations of Fundamental rights b. This can’t be what Congress intended (oh really?) ii. Dissent (FIELDS) – (Based on recognition of civil rights, especially but maybe not only, as in 1866 Act [see above]) 1. Amendment places the common rights of man under the protection of the Nat’l Gov’t a. A citizen of a state is a U.S. citizen living in that State. The rights and P/Is are his as a citizen of the US and can’t be abridged by any State. Made nat’l citizenship primary for enforcement of fundamental civil rights. b. Transferred rights that were once in the purview of state courts to the federal system. c. The 14th Amendment P/I is the same as Art. IV P/I but applies to everyone at every level

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2. Points out that majorities argument that the States can’t take away Federal rights is already established by the Supremacy Clause, so P/I must mean something else iii. Dissent (BRADLEY) – (Based on Original Constitution/fundamental rights) 1. All of the rights in the Constitution and BoR are the privileges and immunities of a citizen of the US, and the 14th made those applicable to the States also 2. These same rights are fundamental and apply even without enumeration, esp. property rights, engaging in lawful employment, resorting to law for redress of injury, etc. iv. Dissent (SWAYNE) – (Natural Rights) 1. P/I extends to everyone the Natural Rights fundamental to the Social Compact II. Recent Revival of P/I a. Saenz v. Roe (1999) 7-2 invalidated on P/I a Cal. Law limited the welfare benefits that new residents could receive to no greater than what they would have received in the previous state of resident. b. Stevens said that the law burdened the right of interstate travel c. Saenz should not be read as a resurrecting of P/I better to stick with things as being protected under D.P. as aspects of liberty

§ 5.03 The Incorporation Debate (Palko & Adamson) I. Incorporated Rights – Does the 14th D.P. make some or all of the BoR guarantees applicable to the states? a. Adamson v. California (1947) Cali rule is that if a D declines to testify at his own criminal trial the prosecution can comment on it. D argues it violates his right against self-incrimination – doesn’t work b. Total incorporation – Idea that the 14th makes all of the BoR apply to the states i. Palko v. Connecticut (1937) Involves the validity of a law permitting criminal appeals by the State (double jeopardy). Palko argued that the 14th made the BoR apply to the States. Cardozo said that it did not. ii. He does say however, that certain values of the BoR are protected, including speech, religion and peaceable assembly – but these were not by force of the amendments – but because the values “have been found to be implicit in the concept of ordered liberty.” 1. Dbl. jeopardy was not one of these, apparently iii. Adamson v. California – BLACK Dissent (DOUGLAS joins) – 14th taken as a whole was meant to incorporate BoR, selective and flexible approaches are natural law jurisprudence. c. Selective incorporation

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i. Only those rights that are seen as fundamental to the American way of gov’t have been incorporated. Most of the BoR. Applies to State and Nat’l Gov’ts. This is how it’s developed. 1. Standards: either 1) essential to “the concept of ordered liberty”, or 2) “fundamental to the American scheme of justice.” ii. Not incorp’d: 2nd, 3rd, 5th, 7th, 8th d. Incorporation “plus” i. Adamson v. California – MURPHY – 14th incorporates the BoR and more. There may be times when procedures are recognized as being so offensive to DP despite not be explicitly against BoR. e. Flexible i. Adamson v. California – FRANKFURTER Concurrence – 14th has independent potency. In each case the judge has to decide whether the practice is offensive to stds of justice. 1. “. . . whether they offend those canons of decency and fairness which express the notions of justice of English- speaking people” 2. look to what the states and England have been doing at common law, what do commentators say, etc, but keep “an alert deference to the judgment of the State court under review.” 3. Opposes incorporation on Federalism grounds – preserve power of states and their experimentation. DP as a low floor they can’t go beneath.

§ 5.04 Procedural Due Process – Not about what can the gov’t do, but how must they enforce and implement.

I. First Question: Is there a Life, Libery, or Property interest abridged? Has there been a deprivation by the state of a life, liberty, or property interest that was presently enjoyed? (can be a right or a privilege)(negligent dep. doesn’t invoke D.P.) a. Life – pretty clear, you probably won’t see this on the exam b. Liberty – The Basis for the Fundamental Rights Doctrine. Includes interests such as marriage, raising a family, working in the common occupations of the community. c. Property – limited to interests recognized by the gov’t, but not strictly tied to property or personty. Can be a gov’t created entitlement. (Reich pg. 453) i. Goldberg v. Kelly (1970) – Disposed of right/privilege distinction. “Welfare benefits are a matter of statutory entitlement for persons qualified to receive them.” The deprival of them must be done in comport with due process. 1. However, just because it’s important to you doesn’t make it a property interest

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ii. Roth & Perry cases (1972) both untenured teachers challenging their termination. Roth could not point to anything beyond a subjective expectancy of continued employment. Perry could point to rules and such that seemed to imply he would continue to be employed 1. Roth: Property interests are not created by the Const. they are created and their dimensions defined by existing rules or understanding stemming from an independent source like state law that secure benefits and support claims of entitlement. 2. Perry: By pointing to rules and understandings to support his claim of entitlement Perry demonstrated he was entitled to a hearing where he could be informed of and challenge the grounds for his dismissal. iii. Castle Rock v. Gonzales (2005) – No property interest in the enforcement of a restraining order. SCALIA: a benefit is not an entitlement if gov’t officials may grant or deny it in their discretion – there was a history of police discretion in enforcement. Order was not mandatory, did not create a personal right 1. If there was an entitlement that doesn’t make it a property interest that invokes D.P. This had no resemblance to traditional property. Restoring the right/privilege dichotomy? Requires some showing beyond a state created expectation 2. Dienes is troubled with the Court’s assumption of the State’s traditional role in defining property interests 3. STEVENS said this should have been certified to Colo.

II. If so: What procedures are necessary to ensure fundamental fairness to the individual? (A sort of balancing test to establish the req’d procedures – a matter of federal law) Minimum procedure required are notice and a hearing. a. Cleveland Bd. Of Educ. v. Loudermill (1985) – Rejecting the “take the bitter with the sweet” argument. While the legislature can choose not to create a property interest, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards. i. Why would the gov’t ever provide anything beside “at will” employment then? To protect against politically motivated firings? See U.S. Attorney firings of 2006. b. Hamdi v. Rumsfeld (2004) – Even an enemy combatant is entitled to a hearing to determine his legal status – although the gov’t might get special deference for seps. of power and military context c. Matthews v. Eldridge (1976) – BALANCING TEST: Balance the interests favoring summary determination against the harm to the aggrieved. Consider (1) the severity of the harm to the litigant if

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requested procedures are not granted, (2) the risk of error, (3) the administrative difficulty and cost of the added procedures. i. Court held that D.P. did not req a hearing for term of SS bens d. Jones v. Flowers (2006) – two notices of tax forfeiture sent to Jones at the property, both were returned as undeliverable. Land sold at auction. HELD: that where the State knew that Jones did not get the letters and they had additional means, not overly burdensome, in light of the property interest it was unreasonable to rely only upon this when they knew that no actual notice happened. e. TN Secondary School Athletic Association v. Brentwood Academy: P did not violate D’s due process rights by imposing sanctions for violation of its anti-recruitment rule b/c the decision to sanction was preceded by investigation, meetings, correspondence, a hearing, etc, EVEN THOUGH D was unable to respnd to witnesses called by P during the administrative proceedings.

CHAPTER 6 – FORMS OF SUBSTANTIVE DUE PROCESS Are there any substantive limitations on what a State can do beyond the encorporated BoR (Economic and Fundamental Rights D.P.)

§ 6.01 Economic Due Process

I. The Path to Lochner – Late 19th/Early 20th Cent. – The Progressive Era a. State and Federal attempts to regulation the industrial revolution through labor laws, safety laws, union laws, were challenged by the regulated parties under the D.P. Clause b. Munn v. Illinois (1877) – State statute limiting rates charged by grain warehouses upheld based upon police power of the state to regulate property that is “affected with a public interest.” Property is “clothed with a public interest when used in a manner to make it of public consequence and affect the community at large.” i. Dicta: Legislature has no control over “mere private contracts, relating to matters in which the public has no interest.” c. Allgeyer v. La. (1897) – While a state can prohibit an insurance company from doing business without a license, prohibiting a person from making a K with an out-of-state company is a violation of the individual’s right to K protected by the D.P. clause. i. Liberty is “deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties . . .” including live and work where he will, practice any lawful calling, and enter into all Ks necessary to carrying out these rights. d. Substantive D.P. became an expression of a late 19th century paradigm of economic orthodoxy: individualism, laissez-faire, natural law of supply and demand, and the freedom of contract i. D.P. would invalidate about 200 fed and state laws (1897-1934)

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II. Lochner v. NY (1905) – A seminal and controversial case in Con Law - a paradigm of Judicial activism and flawed constitutional analysis (says some) But also enjoying a revival today by many who sympathize with the economic perspective. Dienes asks if you can reject the judicial activism of Lochner but still uphold the analysis in cases like Griswold, Roe, and Lawrence v. Texas a. Facts: NY law set maximum hour limits on employers of bakers b. Majority (PECKHAM): The law infringes upon the employer’s and the employee’s right to K as protected by the liberty and property interests of D.P. clause i. Economic theory intertwined with Constitutional analysis? ii. Relies upon Allgeyer for protection of freedom of K. Since a libert Sui juris – interest is being deprived, what due process is required? “of one’s 1. Purports to do a mean-end analysis: is there a directly own right” relationship between the restriction and achieving a Possessing legitimate excercie of power – here police power (health, full social safety, welfare) objective? and civil a. no deference to the State legislature–Court rights. Don’t determines what is legit police power need help of iii. First, as a purely labor law this fails because the public has no the state. interest in the terms of agreements between bakers and their employers. This is a purely private K, see Munn. Not the place of Sui generis – the state to meddle in pvt ordering “Of its own 1. This is not a K in the public interest, like in Munn. kind” or 2. Narrow view of public interest class; unique iv. As a police power (health, safety, welfare law) there is no public or peculiar interest implicated (bread is not dangerous) so it must be justified based upon the health, safety, and welfare of the baker alone. Majority says there is no specific health threat and direct relationship to this threat. Baking is not particularly dangerous. This is an interference with the right of individuals, sui juris, to order their affars. 1. if all you had to do was show that the reg had some vague affect on health the power of the State would be huge c. Dissent (HARLAN): Applies something more like rational relationship review. If the legislature could reasonably believe this to be a legit police power exercise then the court should uphold. He reviews the legislative fact findings and says that there are reasons to believe that limiting the work week will benefit the health of bakers. (More deferential – less of a close means-end relationship required) d. Dissent (HOLMES): Says the Majority decides this based on economic theory. “[A] constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire.” The 14th should not invalidate a political decision of a popularly elected body unless the statutes infringe upon “fundamental principles as they have been understood by the traditions of our people and

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our law.” Doesn’t even look at the leg. factfinding. (Most deferential – no invalidation unless violative of fundamental rights) III. Lochnerism Applied – Addair, Adkins, Muller, and Bunting a. Addair (08), Coppage (15), and Adkins (23) each applied the Lochner mentality in overruling laws that protected union members or provided for minimum wage. In each case the Court premised the ruling on the freedom of K as protected by the 5th or 14th Amendment. In each case HOLMES dissented. He cited inequality of bargaining power that a reasonable person might believe could only be cured by union membership, and in the case of minimum wage said that it did not compel anyone to pay anything it just sets the wage at the minimum level for health and right living. b. In Muller (1908) and Bunting (1917) the court departed from Lochnerism upholding maximum hours laws for women, and men respectively. In both cases the respondents submitted “Brandeis Briefs” containing masses of socioeconomic data on the harms of excessive hours. i. Recall in Lochner, Peckham said the data didn’t support the law, Harlan said it did, and Holmes didn’t even look at it. Would a Brandeis brief have won Lochner or was the court determined? IV. The Fall of Economic D.P. – Around the time the Court started turning around on the New Deal and accepting the Constitutionality of those programs it did the same on economic regulation. a. Nebbia v. NY (1934) – Pet. convicted of selling two quarts of milk below the min. price set by the milk control board. Argues the legislation is invalid because his business is not clothed in the public interest. Price controls should only apply to public utilities or natural monopolies i. Majority (ROBERTS) – Rejects categorical public interest business rule as arbitrary and only reflecting a legal conclusion about whether something is regulable. “If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the req’s of due process are satisfied . . .” – Rational Relation test 1. sounds like Lochner, but applied more like HARLAN 2. “[T]here can be no doubt that upon proper occaions and by appropriate measures the state may regulate a business in any of its aspects . . .” – the death of Lochner 3. Economic regulation is reasonable and constitutional as long as it’s not discriminatory, arbitrary, or demonstrably irrelevant to the policy the legislature is free to adopt ii. Some say this highly deferential standard leads to an abdication of judicial review – a presumption of constitutionality. 1. Any state objective is oaky. If any state of facts could have been possible that would justify the law then the court will assume the state exists b. West Coast Hotel v. Parrish, and U.S. v. Darby eventually overruled Adkins and established that minimum wage was Constitutional

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c. Ferguson v. Skrupa (1963) – The last rites for the economic philosophy of Lochner – “It is up to legislatures, not courts, to decide on the wisdom and utility of legislation.” d. MODERN VIEW: U.S. v. Carolene Products (1938) – [T]he existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transaction s is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such character as to preclude th assumption that it rests upon some rational basis with in the knowledge and experience of the legislators. i. FOOTNOTE 4: “there may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments.” Also left open possibility for “more exacting judicial scrutiny” when legislation negatively impacts the political process itself or affects “discrete and insular minorities.” ii. Exception: Punitive Damages – Court likes to find grossly disproportional punitive dmgs awards violative of D.P. State Farm v. Campbell- usually single digit ratios will be upheld. Phillip Morris v. Williams- last term, punitive dmgs based in part on jury’s desire to punish on behalf of third party individuals not party to the suit is unacceptable V. The Counter Revolution – law and economic movement has hints of natural law and Economic Due Process. Economic rights may be more popular now than they have been in years.

THE MODERN SUBSTANTIVE DUE PROCESS CLAUSE ANALYSIS (NON-FUNDAMENTAL RIGHTS) RATIONAL BASIS TEST: When examining a statute under D.P., if there is not basis (e.g. fundamental rights) for invoking a stricter standard of review, the Court will adopt rationality test: 1) Ascertain the objective of the law (court will not probe for true purpose) 2) Identify the means used by the state to achieve the objective 3) Examine the rationality of the means for achieving the objective by reviewing the relevant facts. (Extreme deference to legislative policy judgment) (The court will not question the objective, for State laws any police power objective will suffice. If it serves a valid purpose the fact that the law incidentally serves other purposes will not make it unconstitutional. Courts will not second-guess legislative fact-findings. If there is a set of facts that would sustain the law, the courts will generally assume the legislation was based on those facts.)

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§ 6.02 Fundamental Rights

I. What is a Fundamental Right? a. Enumerate in incorporated BoR i. Free Speech ii. Free Press iii. Free Assembly iv. Religion b. Unenumerated - inferred from the enumerated rights or drawn from the structures and framework of the Constitution i. E.g. Marital Privacy II. Standard of Review a. Strict Scrutiny – Usually when there is an infringement upon a fundamental right the reviewing court will apply strict scrutiny and ask: Is the law narrowly tailored and necessary to a compelling gov’tal interest? i. Griswold, Roe b. Continuum/Spectrum/Balancing approach – In some cases the court will not want to identify a separate fundamental right but will decide that the regulation substantially burdens a protected liberty interest. In this way the court can avoid using strict scrutiny and opt for “Particularly Careful Scrutiny” – Balance the government interest in regulating the conduct against the burden on protected liberty – Originated in Poe v. Ullman, (HARLAN, J. Dissenting) “certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgement.” i. Harlan in Griswold, Stewart concurrence in Roe, Kennedy in Lawrence III. Contraception and Abortion a. Griswold v. Connecticut (1965) – Probably the first case to accept an unenumerated Constitutional right – that of Marital Privacy i. Planned parenthood administrator and Dr. charged with aiding and abetting a violation of a Ct. law prohibiting the use of contraception. They challenge the law as applied to married couples claiming a right to privacy in the marital relationship ii. Majority (DOUGLAS) – Recognized a right of privacy in the penumbra of other enumerated rights. Refers to other cases where the court found peripheral rights without which “the specific rights would be less secure.” 1. Pierce v. Soc’y of Sisters recognized a right to educate one’s children as one chooses, animated by 1st and 14th 2. Meyer v. Nebraska same ruling on the right to teach and study German in pvt school a. NOTE: Dienes says these were 14th D.P. cases, not 1st, but who’s counting? 3. NAACP v. Button recognized a right of association

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iii. Douglas does NOT rely upon the Due Process Clause, he says the privacy right exists in the penumbra of the 1st, 3rd, 4th, 5th, and 9th. He says that the right to marital privacy is older than the BoR and that this right should be protected 1. Douglas was a total incorporationist, didn’t want to decide this on a broad D.P. liberty right, would rather read it in to the whole BoR 2. Douglas’s reasoning is not often relied upon iv. Concurrence (GOLDBERG): Selective incorporation plus. The 14th incorporates the fundamental rights of the BoR but is not limited to that. Sees the 9th as evidence that the 5th and 14th can Interpretivism: protect more rights than just the enumerated ones in BoR. To Looks only to determine whether a right is a fundamental right, judges must look the language to the “traditions and [collective] conscience of our people” and structure whether a principle is “so rooted [there] as to be ranked as for guidance. Douglas, Black, fundamental.” 1. Stewart Once he’s identified the fundamental right marital privacy Noninterp: Will he states that a higher standard of review is triggered. look to other Goldberg likes “the law serves an subordinating state sources & interest which is compelling” or “necessary to the traditions. Goldberg accomplishment of a permissible state policy.” Then (“rooted in identifies that there are less burdensome alternatives – other collective laws that can do the same thing without the constitutional traditions”), problems. Beginning of Strict Scrutiny? Harlan v. Concurrence (HARLAN): Flexible approach to the 14th/Independent potency of the amendment. Doesn’t identify a fundamental right of pvcy, just says that the statue violates basic values “Implicit in the concept of ordered liberty.” Refers to his Poe dissent (see p. 507 N. 7) wherein he lays out the contours of th th Poe v. the continuum approach and the flexible 14 . He says the 14 is Ullman not restrained by the enumerated rights, that it is a Particularly rational continuum that includes a freedom from all careful substantial arbitrary imposition and purposeless scrutiny restraints and recognizes that certain interests require particularly careful scrutiny. Poe v. Ullman vi. Concurrence (WHITE): Privacy is found in the liberty right, similar to HARLAN, but he applies strict scrutiny. Finds that it does not support the States policy against promiscuity. vii. Dissent (BLACK, joined by STEWART): Finds no support for this privacy right in the BoR and won’t read it into the words. He likes privacy but the gov’t has a right to invade it unless prohibited by a specific provision, which it isn’t. Rejects the argument that the 9th was intended to give the Court the power to recognize new rights, he sees it as a protection of the States from the Fed, not a

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grant of power to the Fed. Also rejects looking to the “traditions and collective conscience of our people” as overly subjective viii. Dissent (STEWART, BLACK joined): Thinks the law is silly and unwise, but that’s not enough to make it unconstitutional. Sees no textual basis for the general right of privacy. ix. STANDARD OF REVIEW? Depends who you ask. Douglas’s is not stated, Goldberg & White are Strict Scrutiny, Harlan is PCS b. Eisenstadt v. Baird (1972) – Invalidated Mass. law that allowed distribution of contraception only to married couples on the grounds that unmarried individuals were denied E.P. BRENNAN Dicta: “If the right of pvcy means anything, it is the right of the individual, married or single, to be free from unwarranted gov’tal intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” c. Carey v. Population Svcs (1977) (AFTER ROE) – NY law prohibited selling contraception to ppl under 16, only allowed it sold by a pharmacist to over 16, and prohibited all advertising. Court held that the constitutionally protected right of pvcy extends to choices regarding contraception. They couldn’t agree about the Constitutional rights of kids. d. Roe v. Wade (1973) – Per BLACKMUN, Court invalidated Texas anti- abortion law by saying that a woman’s right to choose an abortion was an aspect of privacy protected by the 14th liberty guarantee. In making the fundamental right determination Blackmun looked to the harms that flow to the woman and the significance of the choice. Court applied strict scrutiny saying that regulation limiting a fundamental right must be justified by a compelling state interest and narrowly drawn to express only the legitimate state interests at stake. Came up with the trimester framework wherein the State’s interest in the maternal health became compelling after the first trimester, after which point the state could regulate to the extent required to protect her health, and the interest in the potentiality of life became compelling at viability, at which point State regulation is permissible even to the point of prohibition. Provided there is an exception for when abortion is necessary to preserve the life or health of the mother. i. Defining the state interests: 1. Constitutional right of the fetus (competing Const. rights of mother and unborn)? – no indication that framers meant the Constitution to reach pre-natal life in definition of person 2. State interest in protecting prenatal life? Texas is saying that life begins at conception. State has to prove the compelling interest by clear and convincing evidence and here the authorities are in conflict 3. State interests in protection of the pregnant mother and the potential life are legit, but do not become compelling until the second trimester (when risk of abortion outweigh risks of delivery) and viability, respectively.

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a. Per Dienes: By answering questions that it doesn’t have to answer, it is engaging in lawmaking. Does Texas have a compelling interest to prohibit abortion from the point of conception. A no to that specific question would invalidate the statute. ii. Concurrence (DOUGLAS) – Broad construction of the rights protected by the BoR & 14th. iii. Concurrence (STEWART) – Says Griswold and progeny are Subst. D.P. based upon the liberty clause of the 14th. Refers to Eisenstadt and says this statute runs right up against the 14th and should be subject to “particularly careful scrutiny.” The state interests can’t constitutionally support the broad abridgement of personal liberty worked by the law. iv. Dissent (WHITE) (concurred in Griswold) – Finds no support in the Constitution for this and would leave it up to the legislatures rather than overturning the laws of every state that has one v. Dissent (REHNQUIST) – Abortion doesn’t involve a privacy right and although it does involve a liberty interest as protected by the 14th, this does not make it fundamental. The 14th liberty protects lots of things and the normal test is rational basis. The law here passes rat’l basis. If there was no exception for life of the mother it would not. The liberty interest involved here is not “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Points out that abortion laws were in place when the 14th was adopted and were uncontroversial. e. Between Roe and Casey several cases came before the Court and their results were inconsistent although in Webster v. Repro. Health Services the plurality rejected outright the Roe trimester framework. Three years later a different court than in Roe would hear Casey. Roe Liberty/Abortion in Casey Majority Minority O’Connor/Kennedy/Souter: Undue burden analysis. Blackmun White Abortion not privacy/no SS. Abortion is protected lib under DPC, but not “fundamental” Burger (leaves) Rehnquist Douglas (leaves) Blackmun: Abortion is a fundamental right/apply SS. Brennan Adhere to Roe in its entirety. UB too malleable. Stick to Stewart (leaves) trimester. Marshall Powell Stevens: Balancer—look at the competing interests (e.g. for specific provisions of PA bill). Women’s interest in bodily integrity always trumps. (There is an interest in Webster fetus, but never outweighs.) Majority Minority Rehnquist Blackmun Rehnquist: No fundamental right to an abortion. White Brennan (leaves) Abortion not in concept of ordered liberty/historical Kennedy (new) Marshall (leaves) tradition. UB too malleable/no basis in con law. O’Connor (new) Stevens (new) Scalia: No fundamental right/no liberty interest in Scalia (new) abortion. American tradition permits proscription of abortion. Leave up to leg. cause it’s a value judgment. UB too malleable/unprincipled no basis.

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Casey Majority Minority O’Connor Rehnquist Kennedy Scalia Souter (new) White Blackmun (new) Thomas (new) Stevens

f. Planned Parenthood v. Casey (1992) - Pa. law had provisions requiring informed consent, 24 hour cooling period, minor consent with judicial bypass, married woman requiring spousal consent, medical emergency provision, certain reporting provisions. i. Majority (O’CONNOR/KENNEDY/SOUTER): reaffirms the “central holdings of Roe” 1. Right to an abortion w/o undue interference before viability 2. Prohib. Okay after viability with health exception 3. State has legit interest from conception in protecting maternal health and the life of “fetus that may become a child” a. REHNQUIST (below) says this is just the outer shell, no stare decisis ii. Overview of SDP: 14th protects BoR plus, realm of personal liberty the gov’t may not enter, unenumerated fundamental rights, courts must exercise reasoned judgment in defining liberty, where reasonable ppl disagree the gov’t can adopt a position (rational basis analysis) except if the choice intrudes on a “protected liberty,” right of individual to be free from unwarranted gov’t intrusion into decision whether to bear or beget children, abortion involves the liberty of a woman. Her destiny must be shaped by her own conception of her spiritual imperatives and her place in society 1. Dienes: Three bases to be drawn from this – 1) decisional autonomy/personal dignity, autonomy, personhood, 2) bodily integrity, 3) gender equality 2. The Majority never calls the abortion choice a fundamental right, they don’t use strict scrutiny, they apply an “undue burden” analysis iii. Stare Decisis discussion: Four factors that the court should consider in examining whether stare decisis applies 1. Workability – is the precedent unworkable? While Roe involves difficult assessment of state laws the required determinations fall “within judicial competence” 2. Reliance – what hardship would fall on those who have reasonably relied on the rule’s continued application? Typically a commercial concern but here people have made

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choices and organized relationships on it. It has contributed to the social and economic advancement of woment a. Related to the Gender Equality aspect, REHNQUIST is unconvinced and wouldn’t chock women’s equality up to abortion rights 3. Changes to related legal principles – No development of Con Law has weakened Roe’s footing. Abortion rests on two lines: family and reproductive freedom, and right to decide on medical care. These are still strong a. REHNQUIST says abortion is sui generis because of the rights of the fetus 4. Change of Facts – No factual changes demand reexamination. Medical science has changed the timing of viability but this doesn’t change the legal analysis 5. Uses examples of overruling of Lochner (Caused by changes in fact, Depression, etc. that made people realize the logic was flawed), and Plessy (rested on understanding about separate but equal that was repudiated) – because the facts and understandings have not significantly changed since Roe there is no call for reexamining it iv. Institutional Integrity Argument – overruling Roe would weaken the Court’s capacity to exercise judicial power 1. Court’s power relies on its legitimacy which requires it to make principled decisions accepted by the public 2. Ppl can accept some overruling, but it can be upsetting if it happens too often or in “watershed” cases where the court steps in to resolve nat’l controversies a. Roe and Brown – overruling would threaten the legitimacy of the court. b. REHNQUIST & SCALIA hate like this. Popular opinion should not play a role in decision making v. PLURALITY HOLDINGS: vi. Prior to viability woman has right to choose abortion, after viability the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman. vii. Rejects the trimester framework, regulation permitted prior to viability (subject to Rat’l Basis) so long as it does not impose an undue burden, which occurs when “a state regulation has the purpose or the effect of placing a substantial obstacle in the path of the woman seeking an abortion of a nonviable fetus, even if the state has a compelling interest in the regulation 1. State can “inform” (Even if informing = dissuading) but not “coerce” or “hinder.” Incidental burden which still leaves her free to choose is okay

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2. Undue burden is NOT a balancing test – it is simply unconstitutional a. Legitimate state purpose (ends) can’t justify improper means (posing a substantial obstacle/undue burden) viii. After fetal viability, states may prohibit abortions, except where it is necessary in appropriate medical judgment for the preservation of the life or health of the mother ix. The state has legitimate interest from conception in protecting maternal health and “the life of the fetus that may become a child.” x. APPLIED TO PA LAW: 1. Majority - (V-A) Pa. medical emergency definition was okay – “that condition which, on the basis of the physician’s good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or . . . irreversible impairment of a major bodily function.” 2. Plur-3 (V-B) Informed consent is ok provided it does not pose an undue burden: a. Gov’t can force doctors to give specific truthful non-misleading info, including health risks of abortion and programs supporting children b. Although 24-hour waiting period may be a particular burden for some (poor) women, it does not pose an “undue” burden sufficient for facial i. As-applied would require finding group of women, a substantial portion of which would be unduly burdened by this provision. c. Gov’t can force women to certify that they have received this info. 3. Majority - V-C: Spousal notification NOT constitutional. a. As opposed to “theoretical” burden for the 24-hr provision, there is an “actual” burden associated with forced spousal notification because this would be a substantial obstacle for a “significant” number of women. b. Most women who don’t tell their husbands have a good reason for it c. Also holds that the state interest in protecting potential life and husband’s interest cannot override the woman’s individual choice i. Gender inequality here in terms of the pregnancy – woman has a qualitatively different burden until the child is born and thus different interest

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4. Plur-3 V-D: Parental consent allowed provided there is a judicial bypass 5. Plur-4 V-E: record keeping is allowed, except for where it makes reference to the spousal notification xi. Concurrence/Dissent (STEVENS): State’s legit interest in prenatal life is a moral/humanitarian, not Constitutional interest. Woman’s interest in bodily integrity and decisional autonomy are Constitutional xii. Concurrence/Dissent (BLACKMUN): Would apply Strict Scrutiny. Says the laws violate privacy in the bodily integrity sense and the decisional autonomy sense. The laws also violate equal protection. Almost flirts with 13th amendment too. I swear, read it, it’s there. Sticks with Roe (he wrote it) xiii. Concurrence/Dissent (REHNQUIST): Majority’s stare decisis is flawed, Roe should be overturned. Abortion isn’t a fundamental right b/c not implicit in concept of ordered liberty. Abortion is sui generis because it involves the purposeful destruction of a fetus. Says it’s not fundamental so it doesn’t get strict scrutiny so it gets rational basis. Disagrees with every step of the court’s stare decisis analysis. Would have upheld the spousal notification provision. xiv. Concurrence/Dissent (SCALIA): Abortion is not a liberty protected by the Constitution. It’s not in the constitution and it’s not in the traditions of American society. Applies rational basis and would uphold the law. Goes on for a few pages attacking the plurality opinion 1. Dienes asks what standard would Scalia have applied in Griswold? a. Is there a specially protected liberty right? i. There is traditional marriage, martial privacy ii. But he might not ask about marital privacy, he might ask about the use of contraceptives – and that has been traditionally regulated 2. Scalia says that when you look at tradition to see if something has been legally protected you look at the situation in its narrowest sense – so you don’t look at marriage and whether it has been protected, you look at gay marriage . . . so would you look at marital privacy or would you look at the use of contraceptive by married people?

REHNQUIST’S 14th AM LIBERTY/FUNDAMENTAL RIGHTS ANALYSIS FROM CASEY: 1. Is there a liberty interest that is protected (broadly) under the D.P.C.? 2. Is it implicit in the concept of ordered liberty? Palko 3. Is there analogous precedent recognizing this right? 4. Is it deeply rooted in the traditions and collective conscious of our nation? Griswold (GOLDBERG, J. Concurring) 5. If no to all of the above then it’s not a fundamental right and 18 you apply rational basis review Lucarelli Con Law II—Fall 2007 Prof. Dienes

g. Stenberg v. Carhart (2000) BREYER – Court strikes down Neb. Partial birth abortion ban 5-4. 1) Applies the Undue Burdens test as a majority. 2) No exception for health of the mother, only for life. In some cases D&X is the safest procedure for some mothers, but law takes that away. 3) The law could be read overbroadly apply to many D&E proceedings, which were not the explicit aim and are the most common 2nd trimester proceedings. By creating this ambiguity doctors will fear prosecution. This is an undue burden on the woman’s right to make an abortion decision. h. Ayotte v. P.P. of New England (2006) O’CONNOR – N.H. parental notification statute requires written parental notice 48 hrs before abortion on a minor. 3 exceptions: 1) when the Dr. certifies that the procedure is necessary to prevent death and there is insuff. time to send the notice, 2) when a person entitled for notice certifies that they’ve already gotten it, and 3) judicial bypass. First Cir. invalidated on grounds that it did not provide for a health exception and that it was vague b/c it required Docs to gamble with patients’ lives by waiting until they are certain death is forthcoming before doing an abortion. O’CONNOR said that the law need not be facially invalidated. Remanded for a determination of whether the legislature would tolerate an injunction making it constitutional, or whether they would prefer total invalidation. i. Gonzales v. Carhart (2007) 2003 partial birth abortion act okay i. Majority (KENNEDY): Stenberg distinguished by saying there the Court was bound to accept the factual findings of the lower court, but here Congress has provided factual support. ii. Not overbroad because of anatomical landmarks and specific intent provisions – unlike Stenberg this act is more specific and doesn’t knock out a large number of protected D&Es. 1) Specific Intent Provision: Doctor has to intend to deliver the fetus in this way prior to doing the overt act, 2) Specific Anatomical Landmarks: The law specifies that you have to deliver either the entire fetal head, or anything past the navel before doing the overt act. 1. these provisions eliminate most normal D&Es and protect docs who do it by accident 2. “Respondents have not shown that requiring doctors to intend dismemberment before delivery to an anatomical landmark will prohibit the vast majority of D&E abortions. The Act, then, cannot be held invalid on its face on these grounds.”

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a. Spousal notification provision in Casey only had to be an undue burden on a “significant” number of women, this req’s vast majority? iii. Not vague because it lets people know exactly what is prohibited. Can’t be a trap for those who act in good faith 1. Dienes says if you put an “abortionist” up on the stand and have him promise he didn’t mean to, that’s not gonna work iv. Court adds rat’l basis to undue burdens: “Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interest in regulating the medical profession in order to promote respect for life including life of the unborn.” Act is rationally related to state’s legitimate interest in ethics an dintegrity of med profession and interest in life of the unborn. Reasonably related because some women will regret decision, decision must be informed, some women will choose not to abort, medical profession will seek alternative means to provide abortion v. Lack of health exception doesn’t invalidate it because there is no proof that the act would even put women at serious risk (?) Court doesn’t rely explicitly on Congress’s statement that the PBA is never medically necessary, but does say that legislative determination is due difference because of medical uncertainty about whether it creates a health risk. 1. Medical uncertainty provides suff basis to conclude no undue burden. 2. Uncertainty in Roe did not allow Texas to make it’s own choice about when life began, under strict scrutiny the gov’t had to prove their point 3. Not an undue burden because there are alternative procedures, though they may be slightly left safe the ultimate choice to abort is still left in the hands of the woman, although the choice of procedures may not be vi. Part V of the opinion leaves open possibility of as-applied attacks vii. Dissent (GINSBURG) Roots abortion right in liberty (decisional autonomy) and equal citizenship. Upset about upholding a law without a health exception, about dismissing of valid scientific evidence in favor of Congress’ incorrect findings 1. says this law is not rationally related to the interest in preserving and protecting fetal life or maternal life – no fetuses will be save and more women will be endangerd 2. This is about morals, which was held and insuff basis alone for laws in Lawrence v. Tex. IV. Marriage and Family Rights –

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The Game, as always is in the definition of the interest. Is it a deeply rooted/implicit in ordered liberty fundamental right? SS. Is it pure D.P. liberty? PCS Is it an aspect of liberty but not one recognized for constitutional protection? RB

a. although not mentioned in the Constitution it is clear from the precedents that these are liberty rights deserving of some level of heightened scrutiny i. Meyer v. Neb. & Pierce v. Soc’y of Sisters protected the rights of parents to control the upbringing of their children ii. Griswold based on marital privacy iii. Loving said freedom to marry is a vital personal right essential to orderly pursuit of happiness – “one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.” iv. Zablocki recognized a fundamental right to marry in overturning WI statute requiring consent of ct. if you had child support obligations v. Turner v. Safely (1987) Prison regulation requiring consent of warden to get married, which would only be given in “compelling” circumstances like pregnancy, was rejected as not bearing a “reasonable relation” to the proper security concerns of prison officials b. 1996 Defense of Marriage Act – Defines marriage as the legal union between one man and one woman, spouse defined as person of the opposite sex who is a husband or a wife. Allows states not to give full faith and credit to other states’ marriage laws. Denies federal benefits to same sex partners. i. July 2004 House passed bill that removed federal court jdxn to hear cases reviewing state DOMA statutes (Marriage Protection Act – Died in Senate?) ii. Mass. Recognizes same sex marriage iii. Cal passed legislation to that effect – terminated by Gov. Schwarzenneger iv. Md. Upheld ban of Same sex marriage v. Many states have civil unions vi. Big question right now as to what the status should be c. Moore v. East Cleveland (1977) – Pierce, Meyer, Casey all looked to family rights and applied heightened scrutiny, but what should the “family” include? The first time since 1937 that a law was invalidated on D.P. grounds alone without finding another fundamental right, like pvcy in the Constitution or external sources. i. Moore challenges on DP grounds a zoning ordinance that prevents her from having her grandson live with her. The law is held unconstitutional by a plurality ii. Plurality (POWELL) – Refuses to give typical deference when “freedom of personal choice in matters of marriage and family” which is protected liberty under 14th is involved iii. Standard of Review: Particularly Careful Scrutiny of HARLAN

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1. take the importance of the gov’t interest and to what extent it is served by the reg and see if it is sufficient to override the liberty interest, as defined by looking to whether it is “deeply rooted in this Nation’s history” a. This is the “pure” substantive due process approach 2. ordinance justified as a means of preventing overcrowding, traffic, parking congestion, and burden on the school system a. POWELL says the ordinance serves these goals marginally at best 3. Rejects the notion that only the “nuclear” family is included in the traditional family right – identifies tradition of extended family sharing a home. Says it has been common for close relatives to draw together and participate in the duties of a common home. Decisions about childrearing that have been protected in other cases have long been shared by grandparents iv. Concurrence (STEVENS): Sees it as a takings issue. This is a restriction of an owner’s use of her property and there has not been a sufficient showing of police power justification so it falls under zoning review. v. Dissent (BURGER): Ripeness – she hasn’t gone through the administrative process for remedy vi. Dissent (STEWARD, Rehnquist joined): This doesn’t involve the same level of interest as other S.D.P. cases. This is not same as decision to marry and to bear and raise children. Not “implicit in the concept of ordered liberty.” Not a fundamental right. vii. Dissent (WHITE): The interest here is not one that “neither liberty nor justice would exist if [it] were sacrificed.” This is a liberty interest, but not a particularly compelling one. Prefers the “ordered liberty” analysis better than “deeply rooted in the traditions” of the nation, as being more meaning and confined (question if that is true considering they both come from Cardozo’s cases on DP in the first part of the 20th Century). Says the interest in having more than one set of grandkids with her is overridden when the court is assured the proscription is the product of a duly enacted statute no wholly lacking in purpose or utility. He sees a legit police power here so Moore loses. d. Troxel v. Granville (2000) - Grandma wants visitation rights, mother (not her daughter) limits the visitation rights. Gparents went to court under Wash statute that allows “any person” to sue for visitation rights at any time and that the decision is to be made “in the child’s best interest.” Trial court gave her more time. Mother argues it violated her parental rights. Wash agreed saying it violated fundamental liberty rights subject only to protection of harm to the child, and that it was overbroad under D.P.

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i. Plurality (O’CONNOR +R,G,B): Affirmed, statute as applied, exceeded bounds of D.P. by unduly interfering with the fundamental right of a parent to make decisions concerning care, custody, and control of child. Court should have given special weight to mom’s determination of daughter’s best interests. Seemed to compare mom’s rights with the trial court’s reasons for its decision and come out on mom’s side. (Balancing/Continuum approach?) ii. Concurrence (THOMAS): Fundamental right, would apply S.S. iii. Concurrence (SOUTER): Would have accepted Wash’s holding of facial overbreadth. Fundamental right. iv. Dissent (SCALIA) says he disagrees, but this isn’t a fundamental right protected by the D.P. clause. Doesn’t think this is within his power as a judge to decide. Doesn’t want to federalize or constitutionalize this area of family law. NO fundamental right. v. Dissent (KENNEDY) would reverse and remand, too much weight being given to parent’s choice – too broad right V. Homosexuality and Liberty a. Bowers v. Hardwick (1986) Ga. antisodomy law overruled by Court of Appeals relying on Griswold and progeny. SCOTUS rev’d i. Majority (WHITE): None of the rights in Griswold, etc. bear any resemblance to the claimed right of homosexuals to engage in sodomy. Different than the marital rights, abortion, etc. Neither “implicit in ordered liberty” nor “deeply rooted in the Nation’s history.” Proscription against the conduct was longstanding, sodomy was a crime at common law and illegal in all 50 states until 1961. Unwilling to expand D.P. here ii. Dissent (BLACKMUN): Says this case wasn’t about homosexual sodomy, but about the fundamental right to be left alone. The law infringes on spatial and decisional autonomy/personhood privacy. Chides the Majority for being hung up on the homosexual conduct when the law is neutral to sex or status iii. Dissent (STEVENS): Said the gender neutral statute would be unconstitutional as written b/c intimate nonreproductive conduct between married or nonmarried individuals is protected by precedent. It is on the state to show that a selective application would be constitutional – need a reason to justify different application between classes. Liberty is presumptively avail to all. iv. POWELL Concurred – was going to vote against after oral argument but changed his mind later. In 1990 after retiring he called it the biggest regret he had. b. Lawrence v. Texas – Texas antisodomy law and Bowers overruled on D.P. i. Majority (KENNEDY): Bowers misunderstood the nature of the liberty at issue – it wasn’t just right right to engage in homosexual conduct but a stigmatization and criminalization of a certain kind

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of human relationship. The liberty interest is in the freedom to make choices regarding personal relationships and associations 1. Sort of an intimacy, decisional autonomy, relationship right 2. “When sexuality finds over expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.” Pg. 586 ii. Court takes apart the bases of Bowers – rejects that prohibition on homosexual conduct was a part of our tradition, says it was traditionally gender neutral, looks to “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex,” refers to ALI MPC, int’l law, uneven/absence of enforcement, Casey’s protection of personal decisions, Romer’s rejection of laws naming homosexuals as a solitary class and denying them of antidiscrimination protection 1. Bowers: Substantial continuing criticism, changing legal norms, no significant reliance 2. Dienes says this is evidence of the spectrum/continuum test of PCS – Kennedy has identified a liberty interest and now he is seeing how recognized and strong it is. How high a wall will the law have to climb? iii. The law denies homosexuals their autonomy to choose their personal relationships, it stigmatizes homosexual people as criminals, it would require registration as a sex offender or notation on job applications. iv. Court says that the only basis for the law is the State’s interest in morality and morality alone is not enough to support a law. v. Standard of Review: Is never made explicit. SCALIA says the court is using rat’l basis and somehow finds that morality is not even a legit state interest. Dienes thinks it’s the spectrum/balancing approach of Particularly Careful Scrutiny 1. “The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual” vi. Stevens was right in Bower, it is overruled vii. Why not EP? – Court says that if they ruled on the narrower EP grounds, which could have left Bowers standing then States could have rewritten the laws to be gender-neutral and it still would have been understood as stigmatizing homosexual conduct. viii. If morality is not a sufficient basis for a state law that infringes upon a liberty interest, how does one justify the decision in Gonzales v. Carhart? Is the difference the state interest in the potential life? It seems that the basis for the law was the

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condemnation of the brutal action. And how is the interest in the potential life not just a moral interest? ix. Concurrence (O’CONNOR) – Does not join in overruling Bowers, which she joined, but would overrule this law on EP grounds using a “more searching form of rat’l basis review.” The law discriminates against homosexuals by treating the same conduct differently based on the gender of the participants. Moral disapproval is not a sufficient justification for this discrimination under EP. “Moral disapproval of this group like a bare desire to harm the group is an interest that is insuff to satisfy rat’l basis rev under the EPC.” No need to look at whether a gender neutral law would survive DP challenge, it’s not before the court and she doesn’t think such a law would have popular support (straights love their sodomy too). Says that Tex might have rat’l basis in distinguishing between homosexuals and heterosexuals in other contexts where it has legit interest like nat’l security or preserving the trad’l institution of marriage x. Dissent (SCALIA, Rehnquist, Thomas join) – Points out that the court does not declare a fundamental right or apply SS, instead uses a strange RB. Majority’s brand of stare decisis would also overrule Roe. Sodomy is historically prohibit, homosexual sodomy not deeply rooted, no fundamental right. Bowers has been relied on in that morality is a rat’l basis for laws like polygamy, prostitution. Majority is subscribing to the homosexual agenda. Also says that “liberty” is not absolutely protected by DP, it can be deprived so long as DP of law is provided and in the case of fundamental liberties then SS.

VI. Health and Life – The right to refuse Treatment a. The Court has been very hesitant to recognize any sort of affirmative duty of care on behalf of the State – one fear is the creation of a Constitutional tort liability. b. These cases are about applications of S.D.P. to EXECUTIVE power c. O’Connor v. Donaldson (1975) – STEWART (unanimous): involuntary confinement of a patient who was not dangerous to self or others without providing any treatment violates the DP guarantee. “A finding of mental illness alone cannot justify a State’s locking a person up against his will and keeping him indefinitely in simple custodial confinement.” i. Did not reach 1) whether dangerous mentally ill have right to treatment upon confinement, or 2) whether the state may compulsorily confine a nondangerous mentally ill person for treatment ii. BURGER in concurrence doesn’t like the idea of Constitutional Right to Treatment: 1) medical knowledge what it is, bad idea to condition the power to confine on providing “such treatment as will give a realistic opportunity to be cured.” 2) Doesn’t like the

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idea that you can confine and justify the deprivation of liberty just by giving treatment d. Estelle v. Gamble (1976) 8th prohibition of cruel and unusual punishment requires the State to provide adequate medical care to prisoners. Prisoner is unable by reason of the deprivation of his liberty to care for himself so it is just that the State be required to care for him. e. Youngberg v. Romeo (1982) – In the context of a mentally retarded person who had been institutionalized and injured multiple times. Court per POWELL “when the State institutionalizes an individual who is thereafter wholly dependent on the State it is conceded that a duty to provide certain services and care does exist although even then a State necessarily has considerable discretion in determining the nature and scope of its responsiblities” i. State was obligated to provide minimally adequate or reasonable training to ensure safety and freedom from undue restraint 1. Not necessarily required to rehabilitate/train for freedom, but at least had to train him how to be safe inside. ii. Based on the liberty interest in personal security and freedom from bodily restraint – “it must be unconstitutional to confine the involuntarily committed – who may not be punished at all – in unsafe conditions.” f. Deshaney v. Winnebago Cty. Dept. of Soc. Svcs. (1989) – Child placed in father’s custody. DSS hear rumors of child abuse, interviews father, he denies, they didn’t push it. Later when rumors persisted DSS tried to get him out and kid got beaten so badly that he was brain damaged. Mom and child sue under § 1983 i. Rehnquist: A state’s failure to protect ppl against pvt violence is not a violation of DP 1. DP is a negative right – saying that gov’t can’t do something, not an affirmative right saying that they must do something 2. DP intended “to protect the people from the State, not to ensure that the State protected them from each other.” 3. State played no part in the creation of the danger. Knowledge of the danger is not enough here. When a state takes a person into custody and holds them against his will then the Constitution imposes a duty to assume some responsibility for safety and well-being. The duty comes not from the knowledge but from the limitations on his freedom imposed by the State. ii. Brennan Dissent (with Marshall, Blackmun): State should be responsible when it attempts to give aid but fails to follow through especially when it supplants private sources of aid. “[I]f a State cuts off private source of aid and then refuses aid itself it cannot wash its hands of the harm.” Inaction can be as abusive of power as action.

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iii. Sacramento v. Lewis (1998) – Unanimously held that a police officer does not violate the 14th guarantee of S.D.P. by causing death through indifference to human life in a high-speed automobile chase aimed at apprehending a suspected offender. “[I]n such circumstances only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience, necessary for a DP violation.” 1. SOUTER: Court would not apply a tort-like reasonableness standard to the officer’s actions, instead saying that only gov’t conduct that “shocks the conscience” and offends the “decencies of civilized conduct” create DP liability a. Usually this will be a deliberate decision to deny life, lib, prop

CHAPTER 7: THE MEANING OF EQUAL PROTECTION Prior to the 50s, in the absence of race discrimination EP really had little bite. During the years of the Warren Court, EP became a prime resort for overturning legislation. A two tiered system of review gradually emerged:

1) Rational Basis: In most social and economic cases the Court applies traditional deferential rational basis standard – If there is any rational relation between the legal classification and a permissible gov’t objective, equal protection is satisfied. a. The burden is on the challenging party to prove the lack of RB b. If there are findings o fact that would sustain the leg, they will be assumed 2) Strict Scrutiny: When the gov’t employs a “suspect classification,” disadvantaging a protected class, or when the gov’t classification scheme significantly burdens the exercise of a “fundamental right,” including some drawn from the EPC itself – the gov’t has the burden of justifying its different treatement of groups or classes of person by showing that the classification is necessary to achieve a compelling gov’t interest

Moving from WarrenBurgerRehnquist the equation got murkier. SS is still for suspect classifications and fundamental rights, but these have apparently become closed categories. The court has also added two new levels of review.

3) Intermediate Scrutiny: Requires the gov’t to establish that the classification is substantially related to the achievement of an important governmental objective. (Gender and illegitimacy) a. In the gender discrim. Context it has been described as “demanding” and calling for an “exceedingly persuasive justification.” U.S. v. Virginia 4) Rationality Review with teeth: In some contexts the court has used the language of Rationality Review but without the traditional judicial deference, applying a more exacting scrutiny to hold a law in violation of the EPC

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Flexible approach: Some justices have claimed there is only one standard of review with the degree of judicial scrutiny varying with the nature of the discrimination and the significance of the interests burdened

Standards of Reasonableness: The reasonableness of a classification is dependent on: (1) the basis of the classification, (2) the nature of the interests impaired by the classification, and (3) the gov’t interests supporting the classification § 7.01 Traditional Equal Protection I. Traditional Equal Protection a. Royster Guano v. Virgina (1920) PITNEY – “the classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” b. Means-ends analysis – Means in the form of a classification i. Start by looking at the gov’tal interest and the nature of the classification 1. Sometimes arguments become apparent by examining the nature of the classification 2. In the context of same-sex marriage, sometimes people have treated that as a gender classification as opposed to a sexual orientation classification a. Gender is subject to intermediate review, whereas right now sexual orientation is rat’l basis 3. Are laws that criminalize homosexual conduct – ie, discrimination against homosexuals –a classification against sexual orientation regarding the person involved or is a criminalization/ discrimination against a certain kind of conduct? 4. Classification or conduct – very different questions 5. What about anti-terrorism classification – some classifications that appear to be based on alienage may be nat’l origin or ethnicity 6. Not every classification affecting women is a gender classification ii. Identify the standard of review 1. Then it’s just a matter of applying the std to the facts c. Railway Express Agency v. NY (US 1949) – REA convicted under NY traffic reg prohibited advertising on trucks but permitting notices on business vehicles. Challenge under DP and EP. i. DP: legit police power here so no problem ii. EP: Challenge that the law is applied differently to diff ppl causing same harm – underinclusive. Owner advertisers cause same harm as paid advertisers. Classification: Owner advertisers v. Paid Ads 1. Question in EP is always How close a fit is required? iii. DOUGLAS: Court says it’s possible that “local authorities may well have concluded that those who advertise their own wares on

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their trucks do not present the same traffic problem in view of the nature of extent of the advertising which they use” 1. Any conceivable legitimate justification rationale: Court doesn’t care what determination the legislature made, it’s possible they made this one. Possible that the leg decided the two classes are not similarly situation and do not warrant same tratement 2. As long as the classification is not totally arbitrary the court will defer – doesn’t matter if there may have been greater danger in window ads, leg is justified in moving incrementally and isn’t obligated to take on all dangers at once or in order of significance iv. JACKSON concurring – preferable to strike laws down through EP than DP – DP disables gov’t saying that the law is not related to legit purpose, EP just says you have to draw the line differently to make it fit with your purpose 1. Courts can take no better measure to ensure that laws will be just than to require that the laws are equal in their operation v. Although he admits here it looks like the classification is not related to the harm, he upholds the law. Seeming applying any conceivable purpose he says that the city is justified in regulating advertising on trucks because it could be an obnoxious enterprise. d. Morey v. Doud (1957) only case between 1930-85 that struck down a law on rationality review. IL regulated currency exchanges except those that sold USPS, AMEX, Postal Teleg. And WU money orders, IL said it was to protect public, Court said that the discrimination didn’t serve the purpose. e. New Orleans v. Dukes (1976) Overruled Morey. N.O. prohibited all cart vendors from French Quarter but grandfathered two cart vendors in. Court said that was okay, maybe those two vendors had been there long enough to be part of the character of the area. Court wouldn’t say that this judgment lacked rationality. i. “States are accorded wide latitude in the regulation of their local economies under their police powers, and rational distinctions may be made with substantially less than mathematical exactitude.” f. Alternative Approaches to Rationality Review i. Gunther/ Legislative coherence approach – should take the purpose stated by Congress, not make one up. This would pressure Congress to state reasons for classifications and improve the quality of political process through open debate. ii. Public Interest Approach – Sunstein argues EP should require a legitimate public interest and not just to benefit one group. Benefits shouldn’t be distributed on basis of raw political power. iii. Pluralist approach – Posner says lawmaking is really all about power plays and haggling and different groups working for their

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own aims. That’s how it works and the courts shouldn’t second guess the political process. g. U.S. Railroad Retirement Board v. Fritz (1980) – REHNQUIST for the Court upheld a section of the Railroad Retirement act that gave differential benefits to employees depending upon whether they retired directly from RR work or became eligible after leaving work. Identify a reason that Congress could have had and stated it is “constitutionally sufficient” if there are “plausible reasons” for the leg action. It is “constitutionally irrelevant” whether these reasons in fact formed the basis because the court “has never insisted that a legislative body articulate its reasons for enacting a statute.” i. BRENNAN (joined by Marshall) Dissent calls for a closer means-end match: EP scrutiny should require the courts to (1) deduce the independent objectives of the statute from statements of purpose and legislative history, and (2) analyze whether the classification rationally furthers the achievement of the objectives. 1. He says this is properly deferential in that anywhere leg has stated a legit purpose and the means meet that purpose the act is okay, but where the classification is irrelevant to or counter to the purpose, post hoc justifications should be met with skepticism 2. “A challenged classification may be sustained only if it is rationally related to the achievement of an actual legitimate gov’t purpose.” a. This is not the law ii. STEVENS concurrence wants a middle ground. Agrees the majority is too tautological, he would look to a correlation b/w the class’n and either the actual purpose or a legit purpose they may reasonably presume to have motivated an impartial legislature. h. FCC v. Beach Communications (1993) – An expression of the modern view – THOMAS – EP “not a license for courts to judge the wisdom . . . of leg. choices.” A social or econ policy not using suspect classification or infring on fundamental right “must be upheld against EP challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” i. Irrelevant whether it did motivate the leg so lack of leg factfinding doesn’t matter. ii. STEVENS – renews his call for an inquiry of “whether the classification is rationally related to a legitimate purpose that we may reasonably presume to have motivated the leg” where the actual rationale is unclear. i. Fitzgerald v. Racing Ass’n of Central Iowa (2003) Racetracks argued that a law with stated purpose to help racetracks by allowing slots but then taxed the slots more than riverboats violated EP. BREYER points out that laws often have multiple purposes. So even though this law may have

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wanted to give economic relief to racetracks by allowing them to operate slots but also they may have wanted to raise some money on them. i. Breyer summarized the Court’s conclusion that there was “’a plausible policy reason for the classification,’ that the legislature ‘rationally may have considered true’ the related justifying ‘legislative facts,’ and that the ‘relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational.’” GOOD FORMULATION § 7.02 Suspect Classifications – Race

I. Discrimination Through Law and Its Administration a. Strauder v. W.V. (1880) – Murder conviction of a black man overturned because state law excluded blacks from jury service was violative of EP. “the law in the States shall be the same for the Black as for the White; that all persons whether colored or white shall stand equal before the laws of the States.” Here blacks were denied a service granted to whites, but what about equally applicable laws . . . b. Loving v. Virginia (1967) WARREN, for the Court, held that a Va anti- miscegenation law that prohibited interracial marriage where one person was white violated EP and DP. i. EP Analysis: Race Based classification triggers heightened scrutiny – “[T]he fact of equal application does not immunize the statute from the very heavy burden of justification with the 14th amendment has traditionally required of state statutes drawn according to race. 1. although it’s equally applicable to black and whites it is still a racial classification. 2. Same sex marriage advocates make the same argument about laws prohibiting same sex marriage. They apply equally to men and women but they still are a gender classification 3. The State’s equal application argument had been upheld in earlier cases but killed in McLaughlin v. Florida ii. Va. argues that strict scrutiny shouldn’t apply to miscegenation laws because that was not the intention of the 14th 1. Historically possibly true, institutional discrimination was widespread – but the Court here and in Brown say that the historical sources are inconclusive at best. The clear and central purpose of the 14th was to eliminate all official state sources of invidious racial discrimination in the States. iii. The state’s interest here was in White Supremacy, and perhaps in the psychological welfare of children 1. Court doesn’t buy it. iv. DP Analysis: “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. . . . To deny this fundamental freedom on

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so unsupportable a basis as the racial classifications embodied in these statutes . . . is surely to deprive all the State’s citizens of liberty without due process of law.” c. Palmore v. Sidoti (1984) Court rejected a racial classification of a state court. White couple gets divorced, kid with mom. Mom starts dating/cohabitating with a black man. Dad petitions for change in custody. Fla. Court grants it because of protecting child from the hardships and private biases she would suffer growing up in such a situation. SCOTUS disagrees. i. While the best interests of the child are definitely a substantial gov’tal interest in EP terms, and racial biases may exist, this isn’t enough to justify removal. “The Constitution cannot control such prejudices but neither can it tolerate them.” GOOD EXAM QUOTE. Pg. 660

II. Determining Suspectness – a Framework for arguing for a suspect classification – Use Race as the paradigm, think by analogy a. History – look to the historical purposes of the Criteria of Suspectness (per Fourteenth, Black Letter) i. Argued that original intent demonstrates (1) Historical Purpose of purpose for invalidity of racial the EPC discrimination (2) History of pervasive ii. Other sides argues that founders did not discrimination against intend this to extend so broadly: voting, the class marriage, adoption, all of these were not (3) Stigmatizing effect of allowed at the time the classification iii. Original intent is ambiguous. Loving and (4) Classification based Brown on an immutable iv. Loving and Palmore say that the amendment status or condition is to make invalid all invidious (5) Discrimination against classifications by race a “politically insular b. Is it the Arbitrariness of the classification? minority” Distribution of benefits not based in actual differences in merit or need? b. EQUAL WORTH AND RESPECT pg. 662 – “Suspicion [in suspect classifications] is suspicion of prejudice – not simply prejudgment based on ignorance and mistake notions of fact, but invidious prejudgment, grounded in notions of superiority and inferiority . . . attitudes that deny the premise human equality . . .” Judge Linde. Equal Citizenship: requires that government “treat each individual as a person, one who is worthy of respect, one who ‘belongs.’ Accordingly the principle guards against degradation or the imposition of stigma.” Karst. Political Morality “Government must not only treat people with concern and respect, but with equal concern and respect.” Dworkin. c. MALFUNCTION OF THE POLITICAL PROCESS – Carolene Products n.4 STONE, J. Said that statutes directed at racial minorities

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might get heightened scrutiny. “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.” i. Ely sees this as a justification for using the EP to make sure that the political process is not unduly constricted by prejudice. Suspicious of classifications “that disadvantage groups we know to be the object of widespread vilification, groups we know others (specifically those who control the legislative process) might ant to injure.” d. THE ANTIDISCRIMINATION PRINCIPLE – “the general principle disfavoring classifications and other decisions and practices that depend on the race (or ethnic origin) of the parties affected.” “The gov’t may not classify people either overtly or surreptitiously on the basis of a forbidden category: for example their race.” e. THE ANTISUBORDINATION PRINCIPLE – Would invoke EP against gov’t action which “aggravates the subordinate position of a specially disadvantaged group.” Fiss. “Antisubordination theorists contend that guarantees of equal citizenship cannot be realized under conditions of pervasive social stratification and argue that law should reform institutions and practices that enforce the secondary social status of historically oppressed groups.” Balkin & Siegel. i. Fiss says “blacks should be viewed as having three characteristics that are relevant in the formulation of EP theory: (a) they are a social group, (b) the group has been in a position of perpetual subordination, (c) the political power of the group is severely circumscribed.” ii. EP as a GROUP right, rather than an individual right f. Nat’l Origin and Ethnicity are also suspect classifications subject to SS i. Nat’l origin is the country you’re from ii. Ethnicity is a group with common language, culture, etc. 1. Based on status and immutable factor, not merits iii. Denies equal citizenship/respect/dignity to the individual iv. Historical similarities to race but not quite the same historical role g. Yick Wo v. Hopkins (1886) MATTHEWS, Pg. 664 – D convicted of nonpayment of fine from violation of SF law req’d licenses for laundries. D not attacking the law itself but it’s administration/enforcement. The rule is facially race-neutral, but it is being administered on a discriminatory basis – Chinese arent’ getting licenses to run laundries. i. “Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authorities with an evil eye and unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.” ii. EP was violated in the administration of the law.

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1. a violation in the application doesn’t invalidate the law just requires an change in the way it is administered iii. Court looked to the statistical/factual application of the law. Of the 310 applicable laundries, 200 applications by Chinese denied, all applications by non-Chinese approved. Is the statistical disparity enough to prove EP violation?

III. Discriminatory Purpose and Impact (Law facially neutral) a. Washington v. Davis (1976) – A test is administered universally to join the DCPD. P challenges it as having a discriminatory impact. D.Ct. shifted the burden to city b/c of showing of discriminatory impact: disproportionate representation of blacks on force, blacks fail test more, test not shown reliable as predictor of job performance. But granted S.J. because of factual findings on the recruitment efforts directed toward blacks. D.C. Cir. rev’d based on Griggs saying discrim. impact suff to invalidate. i. Majority (WHITE): Rev’d DC Cir. Distinguished Griggs as Title IX, where Congress has indicated discrim impact is enough, this claim here is EP, SCOTUS turf. 1. EP requires a purposeful discrimination on the face or application of the law to trigger heightened scrutiny a. Disparate impact not enough to win but it is enough to force D to bring up evidence to demonstrate no discriminatory purpose. P.f. case shifts burden. b. “an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another.” b. Gomillion v. Lightfoot (1960) – Court held that AL law that changed city boundaries of Tuskegee from a square to a 28-sided figure was unconstitutional under the 15th. The law removed all but 4-5 of the 400 black voters but no whites. “Acts generally lawful may become unlawful when done to accomplish an unlawful end.” c. Discriminatory Purpose Defined: “It implies that the decision maker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identified group. Personnel Administrator v. Feeney. MORE than tort doctrine of you intend the natural and probable consequences of your actions. i. Problems with requiring Purpose: 1. Determining the intent of a group like a legislative body is problematic 2. Even individuals aren’t always aware of their unconscious or subtle motives 3. Moral responsibility extends beyond the actions one specifically intends

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4. Intent is relevant to establishing culpability of legislators, but courts should be concerned with how ppl are treated. Permissibility of laws, not purity of motives. a. Hillman ii. Explanations for purpose: 1. Gov’t has no duty to remedy a harm it has not created 2. Remedy for harms not caused by gov’t is in political process, not courts a. nobody is guaranteed a favorable legislative outcome 3. If a discriminatory impact alone was needed this would invalidate many laws and fundamentally change the way our government operates. It would force gov’t to act on race-conscious basis at all times. May affect every gov’t program. d. Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977) - permit denied for low-income housing in fancy suburb, developers sue under EP and EHA saying that there was a discriminatory effect to the zoning law. D.Ct. for Village. Ct.App. rev’d. i. POWELL: “When there is a proof that a discriminatory purpose has been a motivating factor in the decision . . . judicial deference is no longer justified.” P’s attempt to prove intent through impact was not successful. Says a large proportion of the group who will eligible for the housing project are minority. This is not enough, even through there is some impact you must prove intent. 1. Court examined the history of the zoning law, the procedures the village went through, etc. found no evidence of discriminatory intent. 2. Court did say that “[s]ometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governening legislation appears neutral on its face.” These are your Yick Wo and Gomillions. Just seems like an argument that at times the impact can be so profound as to only point to intent. 3. If discriminatory purpose had been shown then the burden would have shifted to the Village who would have had to show that the same result would have happened without the purpose. ii. Arlington Heights framework of what to consider in determining intent (totality of circumstances) 1. Impact/effects a. The stronger the statistical disparity the more likely to infer purpose. Yick, Gomillion. Not always going to work though. Feeney. 2. Knowledge/forseeablity

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3. Historical factors a. E.g. is the property suddenly rezoned 4. Substantive and procedural context a. Departures form normal lawmaking procedures (closing pool so you don’t have to desegregate) 5. Legislative or administrative history 6. Direct testimony of decision makers iii. Hunter v. Underwood (1985) – Alabama Constitutional provision disenfranchised misdemeanants. Despite being racially neutral it had been established for a racially discriminatory purpose as evidenced accounts of the convention that adopted the Constitution. Rehnquist said the impact warranted investigation into the intent, which was discriminatory so the provision was unconstitutional iv. Baston v. Ky. (1986) racial use of preemptory challenges. No right to a jury all of the same race but you do have a right that you won’t be subjected to a jury chosen in a racially discriminatory fashionP.f. case made and burden shifted to the state to justify the exclusion on “neutral ground” 1. Purkett v. Elm (1995) expanded the neutral ground def to near meaninglessness v. Mobile v. Bolden (1980) – rejected challenge to an at-large election system. Looked at all the offered proof independently and found it inadequate (a/o to doing a totality of circumstances) vi. Rogers v. Lodge (1982) – A retreat from mobile. Here D.Ct. accepted such a challenge by doing historical factfindings. SCOTUS looked at totality of circumstances and said it demonstrated discriminatory purpose. vii. U.S. v. Armstrong (1996) – Discriminatory prosecution case, Court wouldn’t let them get discovery of files regarding people accused but not charged without making an initial showing of differential treatment by “some credible evidence.” Possible to do w/o disc? e. So what happens with the p.f. case? i. Washington v. Davis - “With a prima facie case made out, “the burden of proof shifts to the State to rebut the presumption of unconstitutional action by showing that permissible racially neutral selection criteria procedures have produced the monochromatic result” 1. Rebuttal - If the p.f. case is made by P then the gov’t can come back and rebut by making a showing that race was not the motivating factor – there was something else 2. Justification - Or, they can try to meet the strict scrutiny standard – necessary to a compelling gov’t interest. Hard, but doable see McGruder

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3. Explanation - Per FN 21 of Arlington Heights they can try to show that the same outcome would have resulted even if the impermissible purpose had not been considered. a. Negates causation – n.2 pg. 657 – Gov’t did the wrong but that didn’t cause the harm

Facially Neutral Law Analysis: 1) Is there an act of an executive, legislative, judicial or administrative body? 2) If yes, Is it discriminatory on its face? 3) If no, Is it having a discriminatory impact? 4) If yes to 2 or 3, Is the group discriminated against a suspect classification? 5) If no to 2, 3, 4, then apply rational basis 6) If yes to 4 for a facially discriminatory law apply strict scrutiny 7) If yes to 4 for a facially neutral law, apply Arlington Heights 8) If no discriminatory purpose, apply RB 9) If yes discriminatory purpose, apply Washington v. Davis/Arlington n. 21

IV. Discrimination in Education a. Plessy v. Ferguson (1896) – “separate but equal” – Said the 14th was meant to enforce absolute equality before the law but not meant to enforce social equality. Only when laws violate political or civil rights do you have an EP violation – not laws that deny social equality. Different treatment in social law subject to reasonable justification analysis. Racial segregation was common, 14th not meant to do away with that. Laws don’t enforce a badge of inferiority because both races are treated alike – eye of the beholder. Law can’t eliminate racial prejudice. i. HARLAN Dissent – “I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rihts of those citizens are involved. . . There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.” 1. social discrimination = denial of civil equality b. Plessy separate but equal logic spread from transport to all areas of life i. Education – it was clear they were separate, but almost as clearly unequal

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ii. By the early 50s NAACP had made incremental progress through bringing action alleging inequality in these systems. Set the table for Brown where they went right after “separate” c. Brown v. Board of Education (Brown I) (1954) WARREN for a unanimous court held unconstitutional state statutes mandating segregation of public schools in KS, SC, VA, and DE. Two Main Themes: i. Education – educational opportunity denied by segregation ii. Race – after Brown the court extends the case to racial segregation in other contexts without specific discussion of the harms 1. State imposed racial discrimination is p.f. unconstitutional – the problem is that the state intentionally uses race the harm is the denial of equal treatment 2. Ethics: de jure segregation against a racial minority is immoral and violates the principles of Equal Protection 3. Refers to the psychological harm caused to children by segregation. Cites to social science. d. Ambiguity from Brown I led to different lines of though i. A mandate for equal ed opp? Does the state have a constitutional duty to fix de facto segregation? Is there a duty to provide eq. ed. opp? 1. that’s not where it went ii. Today Brown applies to purposeful segregation by the gov’t 1. De facto segregation is not unconstitutional the gov’t has no duty to remedy or redistribute resources 2. Unconstitutional racially discriminatory purpose drivers EP e. Brown v. Board of Ed. (Brown II) (1955) WARREN for a unanimous court declares the remedy – schools must desegregate with “all deliberate speed.” i. School authorities are to come up with the methods, courts will review them for good faith implementation. Courts will be guided by equitable decrees in fashioning desegregation orders that take into consideration the personal interest of the Ps in education and the public interest in the process happening in an orderly fashion. ii. It may take time to implement, courts will consider administrtiave problems, physical problems, transportation, personnel, revision of districts to achieve admission on nonracial basis, revision of local laws and regs. During the transition courts hold jdxn. iii. Rather than issuing specific order for relief the Court treated it like a class action to effect real change iv. Arguably Brown established a group right. Individual right would have just called for admission of the individual Ps. A right of blacks as a class to equal education. f. AFTERMATH: i. Resistance, school closures, 1957 Ark Gov used police to block minorities, Eisenhower sent in the Guard

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ii. Civil rights movement sped up the rate of change and put it on the public radar iii. Civil Rights Act of 1964 – Title VI said you lose your fed funds if you don’t desegregate – deseg in the south went from 2-20% in a few years  admin. remedy having better effect than judicial g. Green v. County School Board – Freedom of choice plan was insufficient because it was not moving towards real integration. BRENNAN stated that state-compelled dual systems were “clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system. . .” Affirmative duty to desegregate h. Alexander v. Holmes County Bd. Of Ed. (1969) – the time for deliberate speed had passed. Court ordered every school district to terminate dual systems and operate only unitary schools from then on. i. Swann v. Charlotte-Mecklenburg Bd. Of Ed. (1971) BURGER – all de jure segregation was off the books, the district court had ordered a deseg program involving zoning, pairing, and busing. i. District Court had required student assignment – ordered race- conscious actions such as busing and zoning designed to achieve a racial mix of 9-38% black students in each school. 1. Court upheld, but said it was because this was only being used as a starting point. An order of racial balancing (making the schools represent the community) would be reversed. % as measures of progress, not quota. ii. Court said that a few one-race schools, if only because of the demographics of the community and not by state influence, are acceptable in a district but there must be a program for majority to minority transfer iii. Court also said that it is okay for the court to change attendance zones and require busing of students iv. Court finally said that eventually a D.Ct. will declare that a school system has reached unitary status and after that point no further follow up or adjustment is necessary to match changing demographics j. Board of Ed. v. Dowell (1991) if the Board can show (1) that it has complied in good faith with the desegregation decree since it was entered and (2) that the vestiges of past discrimination had been eliminated to the extent practicable – then the injunction ordering deseg can be lifted – current standard

V. Affirmative Action a. Voluntary race based policies to alleviate racial segregation i. No finding of de jure discrimination but they want to fix the de fact ii. Benign racial discrimination as opposed to invidious iii. Prof. Selmi says all the competing arguments in affirmative action were really layed out in Bakke b. Common themes in aff. Action cases

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i. Skepticism – use heightened review to prevent misuse of classification – smoking out function ii. Consistency – EP should mean the same thing to all people iii. Congruence – same application under 5th and 14th c. Objectives i. Remediation 1. Societal – not generally accepted 2. Individual – all justices accept narrowly drawn program to make up to identified victims of gov’t action ii. Diversity – if you’re gonna get it, it’s gonna be here d. Group Right vs. Individual Right i. Although Brown II seemed to identify a group right, cases since have held that EP is a right of the individual

Bakke

Don’t Admit Bakke/Davis Program OK Admit Bakke/Strike Down Davis Policy Brennan (concur) Powell Blackmun (concur) Stevens White (concur) Burger Marhsall (concur) Stewart Rehnquist

Affirmative Action OK Affirmative Action NOT OK Powell Stevens Brennan (concur) Burger Blackmun (concur) Stewart White (concur) Rehnquist Marhsall (concur)

Grutter

Uphold UM Law Policy Strike Down UM Law Policy O’Connor Rehnquist Breyer Thomas Stevens Scalia Ginsburg Kennedy Souter

Gratz

Uphold UM Undergrad Policy Strike Down UM Undergrad Policy Souter Rehnquist Ginsburg Thomas (C)

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Stevens (no standings) Scalia Kennedy Breyer (C-O’Connor) (C-G on inclusion v. exclusion) O’Connor (C)

Affirmative Action (Origins Only)

Powell: Apply strict scrutiny (narrowly tailored means including factors other than diversity). Creating diversity in education is compelling interest, as is remedying past discrimination [but only if institution discriminated in past and appropriate decision-maker found as such]. EP is an individual right not to be treated differently on the basis of race. (Bakke)

Brennan/White/Marshall/Blackmun: Apply intermediate scrutiny to AA because there’s an important, articulated purpose [remedying past discrimination] that doesn’t stigmatize [e.g. Whites who don’t get in]. Historic purpose of 14th Am. is to help minorities. EP is a group right; blacks as a class have been discriminated against. (Bakke) . Marhsall: “It is more than a little ironic that, after several hundred years of class-based discrimination against Negroes, the Court is unwilling to hold that a class-based remedy for that discrimination is permissible.” (p. 652) (Bakke) . Blackmun: “In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them different. We cannot-we dare not-let the EPC perpetuate racial supremacy.” (p. 653) (Bakke)

Stevens/Burger/Stewart/Rehnquist: Title VI expressly forbids using any race-based classification. (Bakke)

e. Regents of U.C. v. Bakke (1978) – No legal finding that there was de jure segregation but the school was racially segregated. Davis med school set aside 16/100 places for racial minorities. Two track admission program and minorities automatically considered under both. Chairman of committee screened applicants to both programs to determine deprivation. Committee would recommend applicants until the 16 seats were filled, no whites ever admitted under the program. Bakke a white male had higher numbers than some of the students admitted, but he was denied twice. Some whites admitted with lower scores than him, some denied with higher scores. Trial court held the program illegal, said race could not be used, Cal. Aff’d ordered Bakke admitted. Davis could not show he would have been denied evein if they had not had the program f. Two holdings i. Powell + Stevens group: Affirm the lower court decision. Title VI is determined by meaning of EP, since the program violates EP it violates Title VI. Admit Bakke. (Stevens group stops here, never reach EP). Court affirms 5-4 that the program was unlawful ii. Powell + Brennan group: An affirmative action program that considers race does not necessarily violate Title VI or EP.

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BRENNAN group concurs that race can be considered, but disagrees with Powell on the proper analysis. g. POWELL: The school’s policy is a racial quota. It is a racial classification. EP must mean the same thing to all people. (Consistency). Rejects the argument that because whites are not “discrete and insular minority” they should be treated differently. Says criteria of suspectness are relevant for considering whether to recognize new suspect classifications, but Strict Scrutiny applies to all race based classification. (Skepticism). Equal Protection is a right of the individual, can’t make one suffer for the benefit of the group. h. Rejects most of Davis’s proposes interests: (1) reducing historic deficit of minorities in med school and med profession – this is blatant preference for one race over another, (2) counter the effect of societal discrimination – remediation for identified discrimination is certainly substantial but only when the discrimination has been identified by judicial, legislative, or administrative findings of constitutional or statutory violations. These findings identify the victims, the extent of the injury and provide oversight for the remediation. Without such explicit findings there is no heightened interest in remedation, (3) increasing the number of docs in underserved communities – Davis has not shown to any degree that this program will serve that interest i. Powell only accepts Davis’s interest in obtaining the educational benefits that flow from an ethnically divers body as compelling. Freedom of a uni to make decisions as to education includes student selection. Diverse students bring new outlooks and ideas to the school. i. Ethnic diversity, however, is only one element in a range of factors a uni may consider in attaining a diverse student body ii. Ultimately race based quotas are not narrowly tailored & necessary to serve this compelling interest. Race is only one factor in diversity. It can be a plus factor to be considered, but each student must be considered for each available spot as an individual j. STEVENS (Burg, Stew, Rehn) – Title VI prohibits excluding anyone from a federally funded program on the basis of race. Cal Aff’d. k. BRENNAN (White, Marshall, Blackmun) – would apply an intermediate scrutiny: racial classification designed to further remedial purposes must serve important gov’tal objectives and be substantially related to their achievement. These four only talk of remediation, don’t touch diversity. i. No strict scrutiny because Whites are not a suspect class. No history of discrimination, no denial of political representation, the racial classification here does not stigmatize whites – no presumption that one race is inferior, no sense of racial hatred ii. Skepticism – acknowledges a significant risk that racial classifications estab’d for ostensibly benign purps can be misused so to justify a classification he would require 1) an important and articulated purpose and 2) no stigmatization or singling out of

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those least well represented in the political process to bear the brunt of the program l. MARSHALL: Blacks have been historically disadvantaged, in order to counteract this legacy of unequal treatment we must permit institutions to give consideration to race in making decisions about who will hold power m. BLACKMUN: It would be impossible to do affirmative action effectively in a race neutral way n. How to characterize the difference b/w Powell and Brennan? i. Individual v. Group right (B says blacks have been treated diff as a class)? ii. Antidiscrimination v. antisubordination? o. For the next 25 years the Powell opinion was the law of the land i. Marks – when you have a split decision, the narrowest ground upon which a majority would have agreed rules p. Between Bakke and Bollinger i. Hopwood v. Tex. (5th Cir.) said Bakke did not represent the court and said diversity is not a justifiable basis, even as a part of the consideration of a number of factors. SCOTUS denied cert. ii. Croson – a majority agreed strict scrutiny is applicable to race based affirmative action classifications iii. Metro Broadcasting v. FCC (1990) – Court upheld FCC minority ownership programs, applied intermediate review to the federal program. iv. Adarand Constructors v. Pena (1995) – O’CONNOR - Congress provides a bonus to contractors who use subcontractors that are run by socially or economically disadvantaged individuals. If ethnic minority groups were in the mgmt it would be presumptively qualified. Adarand challenged the racial presumption, Court said 5-4 that strict scrutiny was the standard in all governmental programs using racial classifications. Skepticism mandates that racial preferences are subject to “a most searching examination”, consistency requires that the same std of review is employed regardless of the groups burdened or benefited, and congruence demands the analysis for classifications is the same under both 5th and 14th. 1. “the fifth and Fourteenth Amendments to the Constitution protect persons, not groups.” q. Grutter v. Bollinger (2003) Umich admits 350 law students, affirmative action program framed on Bakke decision: Each applicant evaluated on all info, race and ethnicicity as a plus factor, does not restrict types of diversity qualities, seeks to enroll a “critical mass” of underrepresented minorities to ensure that they contribute to the school culture. Grutter was waitlisted and denied, sued under Title VI, EP, and 42 USC 1981 i. Majority O’CONNOR – Upholds the program under SS. Does not adopt the Powell opinion as binding precedent, although

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endorses it w/o relying. Defers to the school’s educational judgment that diversity is essential to the educational mission. 1. Compelling interest: Mich’s intrinsic interest in student body diversity – parallel Powell from Bakke – First Amendment educational autonomy in selecting student body, cross-racial understanding, classroom discussion, educational benefits. 2. Court also looks at the positive effects of diversity in the military, citizenship and leadership. a. A change in the strict scrutiny analysis? Is looking at the effects of diversity a backdoor for societal remediation? Saying UMich uses race to prepare students to create an integrated society? 3. The means are narrowly tailored – specifically and narrowly framed. a. Narrow tailoring makes sure there aren’t prejudices and stereotypes in the program (Skepticism). You can’t use a quota, goal, separate admission track, insulation from competition, but you can use race flexibly as a plus factor i. Critical mass was not a quota b/c varying numbers of total minorities enrolled each year 1. Note: she looks at enrollment of total minorities. Rehnquist would do otherwise. b. each student gets individual evaluation, opportunity to highlight diversity through personal statement c. Other suggested alternatives, like lowering admission requirements or lottery systems would hurt school’s quality d. Also says narrow tailoring requires a race-conscious program not unduly harm any members of any racial group e. Finally, all gov’t use of race must have an end – she says it won’t be needed in 25 yrs ii. GINSBURG (with Breyer) Concurrence – excerpt we have just tries to back off the 25 year forecast. Saying that the reality of race & education in the US demonstrates a continuing need for affirmative action. It’d be great if we could end it in the next generation, but not without progress towards nondiscrimination and equal opportunity iii. SCALIA Dissent: The diversity interest in “crossracial understanding” and “better preparation for an increasingly divers workforce” are not specific to education but apply in many aspects of life. Says this compelling interest could be expanded and

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applied to everywhere including civil service. Too broad. Says the split opinions invite litigation. iv. THOMAS Dissent: Concurs on the sunset provision – thinks it’s not needed today, let alone 25 yrs from now. – uses VERY strict scrutiny; must constitute a pressing public necessity. It must be an interest for Michigan (students leave the state); school must choose b/t being elite OR diverse; minorities stigmatized b/c people think they got in b/c of this. Use of race approved in only limited contexts to prevent violence and anarchy – e.g. to avoid prison violence. v. REHNQUIST - accepts compelling interest, but says that this isn’t narrowly tailored b/c there are other, race-neutral options. “Critical mass” = racial balancing, thus even if de jure segregation in the past, can’t use racial balancing to fix it. Looks at number of minorities offered admission and says that they differ between racial group and they are consistent within racial group  looks like quota vi. KENNEDY - Law school gave insufficient consideration to race- neutral alternatives for the admissions program to survive the narrowly tailored requirement of strict scrutiny. Race can be a plus-factor in admissions, but school’s not being true to Bakke individual consideration requirement because once they realize they don’t have enough minorities, race becomes outcome- determinative. r. Gratz v. Bollinger (2003) – UMich undergrad affirmative action plan uses a point system where race is one point category. Worth 20 points on a 150 scale (100+ is autoadmit). i. Majority (REHNQUIST): Program not narrowly tailored b/c awarding 20 plus points does not constitute individualized determation. Too mechanistic and has the effect of making race the decisive factor 1. Flagging system which sought to ensure individualized consideration did not save it. Individualized review of all applicants is needed. Before the flagged applications are looked at the minority points have been awarded and those spots are taken 2. Problem: Is the problem the weight of the factors or that it used numbers at all? Would it be better with different coefficients? ii. O’CONNOR Concurrence: Undergrad program does not provide for meaningful individualized review, assigns every underrepresented minority the same auto bonus. Although a selection process need not accord every factor the same weight, by having the predetermined points weighted as it does the system doesn’t allow real consideration.

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iii. THOMAS Concurrence – Opinion correctly applies precedent, but he thinks racial discrimination is categorically prohibited by EP. iv. BREYER Concurrence – Agrees with O’CONNOR. Also agrees with GINSBURG on need to recognize difference between inclusive and exclusive discriminations v. SOUTER Dissent – this is more like Grutter than Bakke. There is an individualistic review. No quota, that was the problem in Bakke, here students compete for each spot. Race can be outweighed by other factors, some are equally weighted. Also no standing. vi. STEVENS Dissent – no standing. These students have already been admitted to schools elsewhere, there is no relief to be granted. They can’t bring this for other people. Neither is in the process of applying when they filed action. vii. GINSBURG Dissent – Would distinguish between inclusive and exclusive programs. Rejects the Consistency theme saying that a benign program should be subject to a diff. std of rev., although something higher than rat’l basis (still Skeptical). Uphold policy. s. Parents Involved in Community Schools v. Seattle School District No. 1 (2007) – ROBERTS – Cases involve desegregation programs in two urban districts not operating under court orders. Seattle was never under such an order, Louisville had been declared unitary in 2000, one year before they adopt the plan at issue. Both districts use a school assignment program wherein race is a factor that might cause a student to go to a school other than the closest or the school of their choice. i. Seattle Plan: First students are given a choice, 85% go to first choice, only in case of overenrollment do they move to tiebreakers. TB1) does the student have a sibling at the school, TB2) Race: white/Nonwhite – only if the school deviates from district avgs by more than 10%, TB3) geographic proximity ii. Louisville Plan: Requires elementary schools be 15-50% black. Student has a “resides” school in their area. If they would tip the racial mix in that school they get assigned to another school in the cluster. Students can request a transfer, but this can be denied. iii. Part III-A Court Rejects remediation of past racial segregation as a compelling interest because neither school neither is currently operating under a finding of de jure segregation and desegregation order. iv. Part III-A Rejects the diversy in education justification – in Grutter and Bakke that was diversity in the broad sense, this is only the racial sense, not the same interest. Even if it was, the black/other and white/nonwhite nature of the systems don’t encompass true diversity. v. Part III-B (Not joined by Kennedy, plurality holding:) Court rejects the schools’ attempts to identify compelling interests in racial diversity independent from Grutter. Court is skeptical of the validity of these claims, but says even if the diversity interest were

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accepted the programs aren’t narrowly tailored. This isn’t diversity, this is racial balancing, which self perpetuates. Swann said you could use ratios to measure progress, but not as the end goal. Furthermore it is group based and not individualized. vi. Part III-D The means employed aren’t necessary to the interest. The plans only have a minimal effect overall. Racial components of both plans come into play only in a small number of cases. vii. KENNEDY Concurrence – Doesn’t join III-B because he prepared to recognize the compelling interest in racial diversity. You can use race to deseg a de facto seg’d system – can seek to avoid racial isolation, achieve equal ed., this is a compelling interest 1. Thinks dissent distorts precedent 2. Says these plans aren’t narrowly tailored – Louisville system isn’t sufficiently detailed, not clear who makes the decisions, what oversight there is. Basically they didn’t carry the burden of showing narrow tailoring. Seattle the white/nonwhite distinction doesn’t serve the purposes. A truly diverse school 25/25/25/25 wouldn’t fit the program. viii. STEVENS – implies the C.J. isn’t true to the message of Brown. Rejects Consistency. ix. Use of Brown: Basically they all say Brown supports them. But was that case about getting rid of racial discrimination or about striving for integration in education. Dissent says it was about racially integrated primary and secondary education in the local community. x. BREYER Dissent - challenges the de jure, de facto, unitary distinction. Louisville had the plan on the table when they were found to be unitary – how can the plan be good one day and then unconstitutional the next? Seattle has been trying to fix this condition for years and there are often pressures put on them by the office of civil rights. Lots of district adopted voluntary race based plans because of pressure caused by threats of law suits and other pressures – so these aren’t legally remediation plans because there was never a legal proceeding, but the only reason there wasn’t such a proceeding was because they did it voluntary xi. The Legal Standard - “EP permits local school boards to use race- conscious criteria to achieve positive race-related goals, even when the Constitution does not compel it.” – Refers to Swann where Burger said that school boards could compel students to go to schools on a racial basis. 1. Lots of federal programs and case law use race. Dienes says that Breyer is trying to identify the justifiably differential treatment of benign a/o to invidious racial discrimination

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2. Kennedy says he is making an old argument that has been rejected – since Adarand onwards strict scrutiny has been applied to all race-based programs 3. Breyer asserts that not all race based programs are to be treated the same under Adarand, Grutter, Gratz. Strict Scrutiny is not always fatal 4. Is he identifying the different varieties of strict scrutiny we have seen? How strict is the scrutiny called for . . . is this in actuality determined based upon the nature of the discrimination – a context-based view of strict scrutiny? xii. The Compelling interest - Says he is applying strict scrutiny. Compelling interest is integration of the public schools. Decreasing school by school racial isolation, increasing the degree to which racial mixture characterizes each of the schools and the experience of the students 1. is this just the same as remedying societal discrimination? 2. Breyer says it both remedies past wrongs and creates a better tomorrow xiii. Narrow Tailoring - it is only one part of a broader program and it is used in a very small way to reach a desired end. Not the predominant factor in the programs. 1. Breyer says transfers and assignments reflect the diversity in the systems generally – this it not balancing but using ratios as a starting point like in Swann 2. judgment of loc gov’t dealing with seg over time are entitled to deference 3. Individualize judgment in Grutter is inappropriate when dealing with racial diversity as the standard a. Is Grutter relevant precedent for this case? Gender b. Would individ assessment make any diff? No merit 1. Gender is NOT as suspect classificationconsideration so for Strict admission Scrutiny is NOT used  Is xiv.there Consequencesa real difference? – Breyer if yes paints – rationality a dire picture review of the consequences -  Is there Considermerely disparate the impact impact, on all w/ of no the evidence school districts of purposeful across discrim? the nation if yes – rationality review § 7.03 Not SoIf thereSuspect is no Classifications real difference, evidence of purposeful discrim  Intermediate Scrutiny / “Exceedingly persuasive justification” 2. Why gender is like race:  historic and pervasive discrimination  highly-visible trait  immutable  discrimination based on stereotypical thinking  questionable proxy for other factors 3. Why gender is NOT like race:  Justice Powell in Bakke asserted that “the perception of racial classifications as inherently odious stems from a lengthy and tragic history that gender-based classifications do not share.”  Gender classifications do not impose a stigma upon women nor do the classifications reflect any assumption that women as a class are morally inferior.  Perhaps the strongest argument is that women are not a “discrete and insular minority,” as they have been given48 the right to vote since 1920 and now constitute a numerical majority of the electorate.  Gender not a purpose of the 14th – Ginsburg article (top of pg. 788). Lucarelli Con Law II—Fall 2007 Prof. Dienes

I. Gender Classifications – The Formative Years a. Prior to 70s statutes discriminating on gender were reviewed under a generous rationality – Emphasis on the role of women as wife and mom b. Reed v. Reed (1971) BURGER – Court unanimously struck down an Idaho law giving males a preference over females as administrators of estates. Burger used language of RR test: “Whether the diff in the sex of competing applicants for letters of administration bears a rat’l relationship to a state objective that is sought to be advanced.” But overruled the law as “arbitrary.” c. 1972 the Equal Rights Amendment was approved by Congress, stating the Equality of rights under the law shall not be denied or abridged by the U.S. or by any State on account of sex. i. Never ratified – died in 82 d. Frontiero v. Richardson (1973) – Female servicemembers have to prove that their husbands are financially dependent upon them to get increased befefits whereas male servicemembers have these conditions assumed. Gender-based discrimination against females, no remedial interest. Plurality overrules the law i. Plurality BRENNAN (Doug, White, Marshall) – recognizes sex as a suspect classification applies Strict Scrutiny. History of pervasive discrimination based on sex – compares it with blacks in pre-Civil War slave codes, sex is an immutable characteristic not related to ability/merit, discrimination and stereotypes in law and profession. Looks to ungratified ERA as expression of Congressional intent. 1. Strict Scrutiny: Only interest gov’t offers is administrative convenience. This won’t cut it. ii. POWELL (plus Burger, Blackmun) Concurrence - Reed is controlling. Would not recognize a suspect class where not needed. Would let ERA be dealt with by the States before making any calls iii. REHNQUIST Dissent – Rationality Review

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e. Craig v. Boren (1976) OK statute lets females buy certain beer at 18 but males at 21. i. Majority BRENNAN: applies intermediate review – says that a gender classification must be substantially related to achievement of an important gov’t interest 1. something less than strict ii. Identified interest is traffic safety and reduction of drunk driving. Statistical evidence points to 2% of males and .18% of females in the age group arrested for drunk driving – for Brennan this is not close fit. iii. Doesn’t rest on statistics – says that the law doesn’t show sex to be a proxy for drinking and driving. Also the law just makes it illegal to sell the beer to the young men, not for them to drink it. They can have their g.f. buy it iv. POWELL Concurrence – Reed controls. Won’t pin down the exact std but says it fails rationality v. STEVENS Concurrence – rejects tiered approach. There is only on EP doctrine and you vary the review based on the facts vi. STEWART Concurrence – the relation between the law and the goal is irrational. Invidious discrimination. vii. REHNQUIST Dissent – Law passes rationality. No heighted scrutiny, no suspect classification 1. Men: no history of past discrimination, no disadvantage or discriminatory treatment or in need of special solitude from the courts. No suspect class + no fundamental right=rationality 2. Says Intermediate Review has no precedent and is too ambiguous such that it invites subjectivity. How is an important interest different than compelling, etc. f. Intermediate Review is now the rule for gender discrimination – but when will it be kicked in? g. Personnel Administrator v. Feeney (1979) Pg 798 – Mass. law gives lifetime preference to veterans in civil svc employment. Facially gender neutral, but 98% of veterans are male. Result is a gender discriminatory effect. i. Majority STEWART – state laws designed to prefer males over females need “exceedingly persuasive justification.” However applies Village of Arlington Heights framework to hold that where the statute is not actually gender based you must show purposeful discrimination to prove an EP violation. 1. “If the impace of [a] statute could not be plausibly explained on a neutral ground, impact itself would signal that the real classification made by the law was in fact not neutral.” ii. Mass. law upheld: Veteran status not 100% male, and nonveteran status (the arguably discriminated against) is both male and female

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iii. “Discriminatory purpose . . . implies that the decision maker . . . selected or reaffirmed a particular course of action at least in part “because of,” not merely “in spite of,” its advers effects upon an identifiable group.” 1. FN 25 although obviously foreseeable adverse consequences upon an identified group may create an inference that the effects were drawn – but if the impact is an unavoidable consequence of a legit leg priority, okay iv. Marshall (Bren join) Dissent – Says the foreseeable disparate impact here is suff to create an inference of discriminatory purpose. This is born out by leg history. Would apply intermediate scrutiny. Finds that the State fails. h. Geduldig v. Aiello (1974) – Insurance program that removed pregnancy from covered disabilities was not gender based. It did not show invidious discrimination to women because it was focused on the condition not the gender. The classes were pregnant people and nonpregnant people. i. Bray v. Alexandria Women’s Health Clinic (1993) SCALIA – rejected suit against abortion protesters under § 1985 saying there was no invidious class-based discrimination.

II. Real Gender Differences a. Unlike race there are some real differences between the genders i. Should these laws be subject to intermediate review. If the concern is about stereotyping?

Contrast: Craig with Michael M. Craig - is the supposed real difference being used as a questionable proxy for the harm? Look to actual purpose’s importance and how the classification is related.

Michael M, Rostker. – Are men and women in fact different in the context of the law at issue? If yes, not suspect.

Consider also the Individual v. Group right/Antidiscrimination v. Antisubordination idea - Is the concern with making sure each person is treated individually, making gender a neutral factor? In that case even classifications based on real diffs would be suspect

- Or is the concern with eliminating stereotypes and subjugation. More of a group interest, which would not really care about classifications drawn on real differences

b. Michael M. v. Superior Ct. (1981) – PLURALITY court upholds a Cal. Statutory rape law making it illegal to have sex with an underage female from EP challenge by 17 year old male convicted of consensual sex with a 16 y/o female. (5-4)

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i. Plurality REHQUIST: Says there is uncertainty in the std of review and applies a more demanding rat’l basis. Craig clarifies Reed, principle is that the leg cannot make an overbroad generalization based on sex that is unrelated to real differences. Court will uphold statute that reflects that the sexes are not similarly situated in some circumstances. 1. Purpose of the law: State claims stopping teen pregnancies. Pet. says it is about virtue and chastity. REHNQUIST says it’s hard to tell actual purpose because leg relies on more than one, so as long as the important gov’t interest is ONE of the actual purposes this will suffice. 2. Relation to the purpose: Sufficiently related in that it levels the playing field. Female suffers the most harm from teen pregnancy so has independent disincentive. Gender neutral law would be less effective and persuading females to report. (although 37 states had such laws…) a. This is not intermediate review ii. BRENNAN dissent: Intermediate review. Willing to accept the important gov’t interest. However it has not produced evidence to prove the classification is effective at serving this interest. Burden on the State. At least 37 other States have gender neutral laws, they seem to be doing okay. Though gender neutral law would be more difficult to enforce, it doesn’t follow that it would be a less effective deterrent. Girls may abstain b/c of fear of punishment c. Rostker v. Goldberg (1981) – REHNQUIST – Congress’ decision to authorize the draft registration only of men does not violate the Fifth Amendment DP (incorporates EP). Started with deference due in military context, then said real differences between men and women in combat restrictions don’t make them similarly situated w/r to conscription. d. Cohan v. Mohammed (1979) Court invalidated 5-4 a state law permitting mother but not father to block adoption by withholding consent. POWELL invoked intermediate scrutiny and rejected the claim that the classification was related to differences between the maternal and paternal relationship to the child. Stereotyping. e. Parham v. Hughes (1979) – Court held 5-4 that neither DP or EP is violated by state statute that denies the father of illegitimate child who has not be legitimated to sue for wrongful death. Mothers and fathers were not similarly situated with regards to the statute. The purpose was to encourage easy resolution of proving paternity. Plurality opinion applied rational basis, Powell concurrence applied intermediate scrutiny. Either way they said the law was sufficiently related because only fathers can legitimize a child.

III. The Modern Standards a. MUW v. Hogan (1982) – Applied intermediate scrutiny in finding Miss. Single sex nursing school unconstitutional. Aff. Action can be based on

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real remediation, but this was not responding to a real gender disparity in education, this perpetuated stereotypes of nursing as a female job. b. JEB v. Alabama (1994) – BLACKMUN - gender based use of peremptory challenges by the state in a paternity suit ruled unconstitutional. State relied upon the view hat women and men might be more sympathetic to parties of their own gender. Court wouldn’t allow the stereotypes EP seeks to combat be the exceedingly persuasive justification called for in gender based discrimination. REHNQUIST dissent – there are real differences here and the use of peremptories should be upheld. SCALIA dissent – no discrimination here against women comparable to racial peremptories. Both sides can use them, both genders are subject to the peremptory challenges. c. US v. Virginia (VMI) (1996) – GINSBURG – Court upholds the 4th Cir’s holding in the liability phase that EP was violated by the maintenance of a male only military academy. Overrules the 4th Cir’s holding that VWIL was a sufficient remedy. i. Liability: Court says IS applies – State must provide exceedingly persuasive justification for differential treatment. Must show at GINSBURG’S least that the classification serves important gov’tal objectives and Explanation of that the means are substantially related the their achievement. the gender Justification must be genuine (ACTUAL PURPOSE) and must not discrimination rely on overbroad generalizations about gender differences. rationale is the However, unlike in the racial context, the Court recognizes that clearest we’ve inherent physical difference do exist between the genders and seen. A good “remain cause for celebration, but not for denigration . . . or for explanation of artificial constraints on an individual’s opportunity.” Real diffs can the standard in be used for remediation of particular harm, equal employment this Majority opportunity, etc but not to perpetuate legal, social, and economic opinion. (pg. inferiority. 823) 1. State interest 1: Diversity in educational approaches – Court says there is no evidence that this was an actual interest. All other public schools moved to coed 2. State interest 2: Preserving the adversative approach and the unique benefits it provides – While some changes would be required (e.g. for privacy) there are some women who are ready, willing, and able to go through this method. The goal in producing citizen soldiers is not furthered by excluding women. a. Scalia says this is more like strict scrutiny – looking for less onerous alternatives. Just because a handful of women are being excluded doesn’t mean the program is not substantially related. One possible better fit doesn’t destroy interemediate scrutiny 3. REHNQUIST Concurrence (on liability) – wouldn’t hold the State’s actual purposes predating MUW against them, before that they weren’t on notice that this sort of program

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was invalid. However since then they had the chance to reconsider and did not offer any new purposes. Also the lack of any women only public education before the case shows doesn’t serve the purpose in ed diversity. 4. SCALIA Dissent (on liability) – Court ignores lower court fact finding, revises standard of review, ignores tradition. These programs have existed for long time so sanction by political process and should be upheld a. But isn’t EP meant to challenge tradition/remedy historical wrongs? DP is the tradition one. 5. He says the exclusion of women was substantially related to an important gov’tal interest in providing effective and diverse college education. There are pvt schools for women, and the adversative model wouldn’t work for women, not enough interest to support a women only adversative school. ii. Remedial phase: State says that difference in VMI and VWIL are based in actual differences between the genders. Court says there are some women for whom the VMI program would be preferable and it is to these women a remedy must be tailored 1. Why is this not strict scrutiny? The logic is that once in the remedial phase you have already proven a violation and the rules change. The remedy must be closely fit to the wrong, like in de jure school segregation, equitable powers of the court justify lots of strong remedies. Also arguably linked to the notion of the EP as an individual right – remedy has to be effective for the individuals whose EP was denied d. Nguyen v. INS (2001) – KENNEDY - Fed law that children born in another country out of wedlock to a father who is US citizen need to be legitimized or get formal paperwork by age 18 to have citizenship upheld from 5th amendment EP guarantee. Applied intermediate scrutiny, said the fit between means and important end was “exceedingly persuasive,” so didn’t decide whether a lower scrutiny might be appropriate due to Congress’ power over immigration, also didn’t reach whether federal judge could grant citizenship as a remedy. (SCALIA and THOMAS concurring said no.) Said parents were not similarly situated w/r to proving parentage because mother bears the child. Also parents not similarly situated w/r to relationship with child, mothers have stronger bond through carrying and delivering child. i. How does this not conflict with Cohan v. Mohammed? ii. O’CONNOR Dissent says the majority misapplies the standard. Doesn’t look in to the ACTUAL purposes. There is not exceedingly persuasive justification that the act of birth makes parentage more easily provable by the INS, so it doesn’t serve the purpose. Gender neutral requirements, like requiring either parent

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to prove parentage within a certain time would better serve the purpose without the discrimination. WHEN TO USE INTERMEDIATE SCRUTINY: 1) Overt gender discrimination on the face of a statute – Craig v. Boren 2) Facially neutral statute that has underlying purposeful invidious discrimination – Feeney 3) Take care that in the case of statute ostensibly based on real gender differences the State give exceedingly persuasive justification that the differences are real, are an actual puprpose of the statute, and are not perpetuating stereotypes 4) Part of Intermediate Review is showing that the law is actually having the effect or is likely to have the effect of furthering the interest. a) Craig beer law wasn’t going to stop males from getting beer. Michael M. BRENNAN (D) said state to show because the stat rape better deters minors from having sex by punishing men only. REVIEW OF EP STDS of REVIEW: - Race, ethnicity, nat’l origin – all suspect classifications that get Strict Scrutiny o Alienage classifications by States generally also suspect, but there is a “political community exception” when the state sets qualification to participate politically – as in voting or holding office, these get Rationality o Federal Alienage classifications generally get Rationality – deference due to Constiutional power over immigration and naturalization. But see Nguyen (Applying intermediate scrutiny to a gender classification in immigration context) - Illegitimacy Classifications (restricting rights of children born out of wedlock with no proven paternity) – get Intermediate - Gender – Intermediate Scrutiny - Everything else seems like Rationality Review o Age, Sexual Orientation, etc o Sometimes the court puts a little more bite in the application of Rationality Review

IV. Rational Basis “With Teeth” a. Occasionally the Court applies a more rigorous Rationality Review i. These cases appear to have no effect as precedent on future decisions. ii. Some commentators say there is no common thread iii. Dienes thinks there is something else going on: The court senses that there may be animosity or prejudice against a particular class or politically unpopular group underlying the classification. 1. Not willing to recognize a new suspect class

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2. Not willing to arbitrarily apply heightened review (Consistency concerns) 3. Find the law unconstitutional under Rationality Review iv. O’CONNOR in Lawrence, in arguing for overruling the sodomy law on EP grounds cited to Cleburne and Romer as cases where laws with classifications based on moral disapproval and inhibiting personal relationships were violative of EP – is this a factor? b. City of Cleburne v. Cleburn Living Ctr. Inc. (1985) – Zoning law req’g special use permit for home for mentally retarded, which was then denied, challenged on EP grounds – Ct.App. held mental retardation a quasi- suspect classification, like gender, and struck the law under Intermediate Review. The Court, by WHITE, affirms the invalidation but holds that the zoning law is unconstitutional as applied, mental retardation is not entitled to intermediate scrutiny, and the law fails rationality review. i. Majority WHITE: Relies on Murgia (denying quasi-suspect designation for age) “where individuals in the group affected by a law have distinguishing characteristics relevant to interest the state has the authority to implement, the courts have been very reluctant . . . to closely scrutinize legislative choices as to whether, how and to what extent those interests should be pursued.” Essentially, some classifications are based on real differences that the state has a legit interest in legislating around. 1. Real diffs in mental retardation: Not a neutral factor (unlike race there are real differences b/w the mentally retarded Not Suspect: Real and the non, they have reduced ability to cope and differences exist function), requires a level of expertise in dealing with them that are legit for (better left to leg), legislative response does not show the legislature to antipathy or prejudice, not politically insular (gov’t act upon/regulate generally responsive to their needs), slippery slope (if we recognize this, then you have to do disabled, elderly, ill . . .) 2. This is a legit classification so Rationality applies. Rationality does not tolerate arbitrary distinctions or objectives that show “bare desire to harm a politically unpopular group.” ii. City’s offered justifications: density within the home, concentration of population, traffic congestion, fire hazards, serenity of the neighborhood all fail rationally to justify singling out this home but not applying the zoning law to apartment homes, boarding houses, frat houses, nursing homes for the elderly, hospitals, etc. There is no rational relation between the classification and the state’s interests 1. The permit appears to rest on irrational prejudice a. An inquiry into ACTUAL purposes, a/o to typically any conceivable justification approach to RR iii. Court says that by looking only at the factual situation as applied to this home (as-applied challenge) they can avoid invalidating the

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law entirely, as it does have a rational basis in other contexts. (Conveniently this also limits the precedent value of the opinion) iv. STEVENS concurrence – rejects rigid tiered framework of review. All EP review is based on an examination of the nature of the classification, the history of unfair treatment, purposes served by the law, any characteristic of the disadvantaged class that justifies the disparate treatment. Sometimes it’s perfectly reasonable to draw classifications by mental retardation (providing funds for special ed) but this law is based on irrational fears. v. MARSHALL (Bren & Black) Concur/Dissent – Doesn’t like the rat’l basis with teeth or the as applied holding. Would be forthright about using more demanding standard. Also believes standard of review varies based on interest affected and the basis of the classification. Here intermed. review is appropriate to invalidate. c. Romer v. Evans (1996) – Col approved Const. amendment preventing homosexuality from ever being a suspect/protected class for antidiscrimination or any other purposes. Lower court had struck the law on strict scrutiny. SCOTUS per KENNEDY affirms, but does not use SS. Col argues the law puts homosexuals on equal grounds with everyone else. SCALIA in dissent agrees, KENNEDY says implausible. i. Majority KENNEDY: Rejects Col argument on neutrality, says the amendment repeals civil rights laws and rejects any future aff action in this area. Denies the benefits of civil rights laws to homosexuals, renders them a solitary class denied specific legal protections available to other citizens in a number of contexts. ii. Two Part Analysis: iii. Core violation/per se approach – a law declaring that in general it shall be more difficult for one group of citizens than all others to seek aid form gov’t is in itself a violation of EP which is meant to prevent arbitrary impositions of burdens on a particular group – EP requires legit purpose for classifications iv. general rationality argument – Too narrow in that it disadvantages a group burdened by law through identification of a single trait. Too broad in that the discrimination is so unrelated to the claimed justification as to suggest that it is not related to a legitimiate public welfare interests 1. a product of desire to harm/animosity 2. disconnect between purported objectives (neutrality) and scope of amendment (affects everything from workplace discrimination, to housing law, affirmative action) v. SCALIA Dissent – Accepts Col argument that it just rejects special treatment and nothing more. Homosexuals still protected by general antidiscrimination laws. Amendment just requires homosexuals to resort to a higher level of political process (Constitutional amendment vs. municipal regulation) Compares it

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to a state law that would prohibit the awarding of municipal Ks to relatives of city politicians. vi. PART II – Rationality review – Court ignores Bowers which is most relevant precedent. (good point) If it’s okay to make homosexual conduct criminal in the form of antisodomy law certainly this law that makes nothing criminal and reaffirms neutrality should be okay vii. PART III – Amendment is not animus but a rational means for Col citizens to express moral disapproval of the conduct of homosexuals and combat the disproportionate political power of that group in certain geographic areas. Law responds to gay rights movement in places like Aspen. Compares it to polygamy laws – which were required of certain western states for admission to the union. 1. Is the danger the potential harm? To women, danger to children, etc. Social welfare costs to the state – taxes, etc., Scope: polygamists denied right to marry, homosexuals denied benefits across the board d. Can Romer and O’Connor’s concurrence in Lawrence stand for the proposition that moral disapproval is not alone a legitimate rational basis, what does that mean for same-sex marriage? i. O’Connor implies that the difference is in the interest in preserving the traditional institution of marriage ii. Couldn’t one make an argument that EP, unlike DP, is less dependent on tradition because the point is to remedy institutionalized discrimination? e. Tribe identifies a distinction between the formal acknowledgment of something and a ban f. Same sex marriage ban as gender discrimination i. A man can marry a woman but a woman can’t – is this grounded on real differences, or is this like Loving v. Virginia? Even though both blacksFirst andAmendment whites were Rationales proscribed from engaging in the 1) The Marketplaceconduct of Ideas it was – The still 1 stdiscrimination forbids gov’t becausefrom taking while sides a white in the can natural marry struggle of ideas.a white, If gov’t a black does couldnot limit not. or restrain the mktplace of ideas, full and free expression will push the best ideas towards acceptance. “[T]he best test CHAPTERof truth is 8 the -- powerFREEDOM of the thought OF to EXPRESSIONget itself accepted in the competition of the market.” Abrams (HOLMES Dissenting) 2) The Citizen Participant – First Amendment is meant to encourage vigorous, § 8.01 robustFree Speechdiscussion Doctrine of public issues and public officials. Such discussion is central to democratic gov’t in order that the ppl may actively participate in governing. See NY Times v. Sullivan, see also Whitney v. California (BRANDEIS Concurring) (“public discussion is a political duty”). This model argues that speech is only protected for what it yields to society. Non-political speech that does not serve democratic deliberation may not be covered by the 1st. a. Meiklejohn argues that the 1st protects the idea of self-governance. Public political speech is protected but not private speech. It is the right of the public to hear the idea, but not the right of the speaker to say it. b. Bork is an “absolutist” and finds that public speech is absolutely protected. However speech that is not political is not protected 3) The Individual Liberty Model – Freedom58 of expression serves individual values as well as societal goals. Liberty is valued both “as an end and as a means.” Whitney (BRANDEIS). Individual autonomy and self-determination are valued. Lucarelli Con Law II—Fall 2007 Prof. Dienes

Other Themes:  Absolutism: Speech is fully protected. “Congress shall make no law” means NO law. (Can be absolutist with regards to certain contexts, like political speech. Bork)  Speech v. Conduct – Speech is protected. Speech mixed with conduct or speech that is essentially conduct will get less or no protection  Categorical approach – Obscenity, Fight Words, True Threats, Incitement, Child Porn, Fraud, Defamation. These categories get less protection. Some say they are “invisible” to the first amendment, others say that they are merely regulable based upon their content.

I. Regulating Advocacy: The Clear and Present Danger Doctrine Clear and Present Danger Holmes/Brandeis Reasonableness Gitlow, Whitney Incitement Masses Gravity of the Evil Dennis Incitement, Brandenburg Test Brandenburg a. Schenk v. US (1919) – Ds convicted of conspiring to violate Espionage Act in sending leaflets to people saying the draft was in violation of the 13th Amendment. HOLMES early outline of the C&P danger doctrine: The question in every case is whether the words used are used in such circumstances and are of such nature as to create a C&PD that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. b. Abrams v. US (1919) – Pamphlet argues against forces sent to Russia to encounter Bolsheviks. HOLMES in dissent (Bran joined) argues the convictions should not stand b/c no real possibility that the pamphlets would lead to an immediate danger. “[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market.” Regulation of speech is appropriate if it would lead to immediate danger, otherwise let the good ideas counter the bad.

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c. Professor Barron, in Access to the Press A New First Amendment Right, (1967), argued that the marketplace of ideas theory is a “romantic conception” but the development of mass communications limits the availability of ideas to access the marketplace of ideas. He argues that there is no marketplace of ideas, and that there should be a right to access and that the government should intervene to provide access for the less powerful ideas. i. Affirmative first amendment – gov’t should intervene to provide for public access to the means of communication. d. Gitlow v. NY (1925) - Gitlow was a member of the Socialist Party and published a radical “manifesto.” He was convicted based on the state’s criminal anarchy statute. The Supreme Court, per Justice SANFORD, upheld the conviction. Court noted that 1st FoS incorporated by 14th, in analyzing the case observed that the State through this statute determined that advocacy of overthrow of gov’t by force are so evil they can be penalized. “That determination must be given great weight.” Essentially applying highly deferential rationality type review. Court determined that the law was reasonable and not arbitrary. i. Note: no determination by the court that the speech actually was dangerous to the state, just that it fit the definition in the law and that the law itself was reasonable. ii. Distinguished from Schenk, that required C&P danger by deferring to the legislative classification. If the leg had just spoken to conduct which may bring about the harm, then courts must apply C&P. iii. HOLMES (and BRANDEIS) Dissent – C&P Danger doctrine should apply and the danger isn’t imminent here. Every idea could be an incitement diff b/w incitement and expression is the enthusiasm of the speaker in achieving the result. Publication spoke of lawless uprising at some vague time in the future, not right now. 1. This idea focuses on the content of the speech, not consequences or context. e. Whitney v. Cal. (1927) – Whitney attended Communist Convention and was at an assembly where a majority of ppl favored violence for political change but she contended she actually argued against violence. Convicted under Cal Criminal Syndicalism statute. SANFORD upheld the conviction. Stated that organized action is more dangerous than individual action. Even though she didn’t favor violence her conduct fits in the statute and it is constitutional as applied. i. BRANDEIS (Holmes join) Concurring – Concur b/c Whitney didn’t challenge the C&P danger aspect of the statute, but they think there is a facial argument against the statute on C&P grounds. Imminence, probability and serious lead to a C&P Danger. More demanding than Holmes in Abrams. Not advocacy but incitement that can be prohibited

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1. must look beyond the statutory definition – rejecting the deference of SANFORD – and judge should make an independent determination of C&PD 2. Free speech is fundamental but not absolute 3. In an emergency it is qualified. f. Masses (SDNY 1917) – HAND - “one may not counsel or advise others to violate the law as it stands. While of course this may be accomplished as well by indirection as expressly, if one stops short of urging to resist the law, it seems to me one should not be held to have attempted to cause its violation.” Emphasis is on tolerating speech until it is a direct incitement. Speaker can put forth ideas but not use words that encourage imminent lawless action. A Content-focuses approach g. Dennis (1951) – McCarthy Era Case. Leaders of Communist Party prosecuted under §§ 2&3 of Smith Act. C&PD doctrine supposedly the rule of the day. Court examines the facial validity of the act and uphold 6- 2. VINSON purports to apply C&PD but reformulate it to fit the context. Court adopts the rule stated by Judge Learned Hand in the Court of Appeals below. “In each case [courts] must ask whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” This test modifies the Clear and Danger Doctrine by 1) not requiring immediacy, and 2) if the danger is large enough there is no need to consider how probable the damage is likely to occur. Most commentators find this to really water down the Clear and Present Danger Doctrine. Recap – leading up to Brandenburg: h. C&P focuses on the circumstances – are the dangers sufficient i. Masses/Incitement test focuses on the content of the speech – certain types of speech are not deserving of First Amendment protection i. Incitement would appear to allow the gov’t to suppress a speaker where there was no real likelihood that action would happen ii. Yet the incitement test would appear to protect the speaker even when the circumstances would present a C&P danger but the speech itself does not seem to use language of incitement j. Dennis purports to use C&P but reinterprets it in terms of the gravity of the evil – reads imminence out of it. i. Gravity of the evil discounted by probability – implies that a truly grave evil regardless of improbability is still proscribable k. Yates- transition period – statutory interp case interpreting the Smith Act i. Court brought Dennis closer back to Holmes/Brandeis C&P ii. It is only advocacy that is urging to action that is not protected – not abstract advocacy

l. Brandenburg v. Ohio (1969) – Ohio Criminal Syndicalism statute essentially the same as the one in Whitney – prohibited advocating unlawful methods of terrorism and assembling with any group to teach those practices. D was a Klan member who said that revolution may be

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required in the future. Challenges the law facially and as applied. Court, PER CURIAM, holds the law facially unconstitutional. i. New Test of Laws Forbidding Advocacy of Force or Unlawful Action: 1. Advocacy 2. Directed to inciting or producing a. Does this include specific intent? Dienes says yes. 3. Imminent 4. Lawless action 5. Likely to incite or produce such action ii. The law as fashioned applied to too many activities that do not fit the above requirements  facially unconstitutional iii. Neither the indictment nor the instructions below narrowed the application of the statute  unconstitutional as-applied m. Note 1 – pg. 989 – some say that this is the most speech protective standard yet i. The argument is that this merges Masses with C&P – it requires both clear and present danger and the language of incitement ii. Look at content of the speech and the circumstances surrounding it n. Should the test be read as requiring only the incitement of “imminent lawless action” likely to produce that action (thus only focusing on the incitement) or does it require that the action actually be imminent o. Rice v. Paladin (4th Cir.) (cert. den’d) (Hit Man case) can be read as saying that all Brandenburg protects is the advocacy of abstract doctrine. Paladin published a book called “Hit Man” that included detailed instructions on how to get away with murder. Ps sued on the theory that Paladin had aided and abetted. The language of the decision seems to bring up the speech- conduct distinction. Should the book be considered speech or conduct? If it’s conduct, you don’t even get to the 1st Am. i. D tried to argue there was no temporal imminence. Time had passed between the publication of the book and the murders. ii. Court rejected it saying that speech which is tantamount to legitimately proscribable nonexpressive conduct may be legitimately punished incidentally to the constitutional enforcement of generally applicable statutes. iii. Court also said that the aid provided by the book bears no resemblance to the ‘theoretical advocacy’ or ‘the mere abstract teaching of . . . the moral necessity for a resort to force or violence.” Brandenburg. Instead this was, according to the court, “advocacy and teaching of concrete action.” Yates 1. Did the court rely on speech-conduct distinction, or on the concrete vs. philosophical advocacy (Brandenburg a/o Yates)? iv. Regardless of the approach, Hit Man does seem to imply that actual face to face incitement is not needed. Advocacy likely to result in some harm = punishable speech

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APPLYING BRANDENBURG ON AN EXAM (Majority approach): 1) Look at the content of the speech to see if it is directed to inciting?: It can’t be just “mere advocacy of abstract doctrine” 2) Analyze context of the speech: Is there a harm that is likely to occur imminently?

If a statute can’t be read to include those elements, then it may be facially invalid. Unless these elements are alleged and proven by the gov’t then it’s not being constitutionally applied.

II. The Structure of Speech Regulation

Two-Track Method of Analyzing a Regulation of Speech (Based on BRENNAN’s Analysis in Texas v. Johnson) 1. Is it Speech? Is it expressive conduct? a. If No, analyze under DP or EP as appropriate b. If yes 2. Tracking: content-based (track 1) or content-neutral (track 2)

Content-Based Content-Neutral 1. Is it in a category of “unprotected speech?” 1. O’Brien/I.S. a. If yes – apply RAV & exceptions b. If no – apply S.S.

a. Content-Based and Content-Neutral Regulations i. Content Based: Regulating because of the nature of the speech, or the message because gov’t believes the speech will do harm 1. Presumptively unconstitutional – subject to SS (unless it falls into one of the categories of “unprotected” or “low value” speech) 2. Mosely (1972) (below) – “[A]bove all else, the First Amendment means that gov’t has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” 3. Turner Broadcasting Inc. v. FCC (1994) (Turner I) (below) (This was unrelated to the holding of the case, all dicta) KENNEDY – Reasons why content-based are presumptively invalid: Liberty (person should for self on the ideas and belief deserving of expression), gov’t neutrality in the mktplace of ideas, democratic model (to control the gov’t must be able to criticize it)

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a. Certain well-defined categories of speech are excepted (you can regulate based on content): i. Obscenity ii. Child Porn iii. Fighting Words iv. Fraud v. Defamation 1. BUT SEE RAV v. City of St. Paul (below) – distinctions within the categories may be unconstitutional content-based regulation. (e.g. prohibiting only racist fighting words as opposed to sexist or homophobic). Exceptions apply. 4. Some see Brandenburg as a category – incitement – others just see it as a way of satisfying SS. Regulable either way. 5. Distinction between subject matter regulations and viewpoint regulation (latter is more suspect) – but both subject to SS a. Although subject matter regulation doesn’t appear to violate the neutrality of the government or be a censoring of any particular view it does support the status quo and could be a covert way of keeping disfavored ideas out of the “marketplace.” ii. Content Neutral SEE 994-995: Regulation for purposes unrelated to the content of the speech – “Time, Place and Manner” regulation (TPM) – although expression may be incidentally burdened 1. Intermediate Scrutiny – something of a balancing test a. The law must be narrowly tailored to serve a significant or substantial gov’t interest and leave open ample alternative channels of communication b. Often described in the language of U.S. v. O’Brien (1968), although it means the same thing: “A gov’t reg is sufficiently justified . . . if it furthers an important or substantial gov’t interest; if the gov’t interest is unrelated to the suppression of free expression; and if the incidental restriction of alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” c. No need to prove that there are “no less onerous alternatives” d. Must effectively and directly further the gov’t int. 2. Typically a pretty deferential standard – unless it is a substantial burden on the speech (though content neutral), or if it is a direct burden rather than an incidental burden in the course of regulating something else.

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iii. Police Dep’t of City of Chicago v. Mosley (1972) (995) – Chi. Ordinance prohibited picketing w/in 150 feet of school, exempted peaceful labor picketing related to a dispute involving the school. MARSHALL: Gov’t has made a distinction between labor picketing and all other picketing. “[G]ov’t may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views.” (Viewpoint Discrimination) Furthermore gov’t can’t even pick which topics are worth debating. “Once a forum is opened up to assembly or speaking by some groups, gov’t may not prohibit others from assembling or speaking on the basis of what they intend to say.” (Subject Matter Discrim.) 1. NOTE: Court combined EP and 1st analysis, with a dash of public forum doctrine thrown in for flava iv. Simon & Schuster v. Members of the NY State Crime Victims Board (1991) (996) O’CONNOR – Court invalidated NY’s “Son of Sam” law that mandated proceeds from any K with an accused or convicted person for a depiction of a crime (film/book) be turned over to an escrow fund for the victims. The act was content- based because it singled out income derived from expressive activity instead of any other profit from the crime, and it is directed only at works with a specified subject matter. The law “establishes a financial disincentive to create or publish works with a particular content.” (concerns about chilling this kind of speech). 1. State did have a compelling interest in compensating victims from the fruits of crimes, but the law was not narrowly tailored because it was overinclusive. It would have reached even The Autobiography of Malcom X, and Thoreau’s Civil Disobedience 2. KENNEDY Concurrence – Prefers a per se approach with certain well defined categories. (categorical approach) Sees this as more clear-cut than the “sort of ad hoc balancing” of Strict Scrutiny. Accepts that some new categories might emerge over time. v. Boos v. Barry (1988) (999) – D.C. ordinance prohibited display of any sign w/in 500 feet of a foreign embassy that would bring that gov’t into disrepute. Viewpoint neutral in the sense that it didn’t care what the particular position was on any issue, but it did exclude an entire body of speech based on its subject matter. vi. Turner Broadcasting v. FCC (1994) (994) – KENNEDY – (5-4) Held federal “Must-Carry” laws requiring cable companies to dedicate channels to the transmission of local broadcast stations to be content-neutral. Although they distinguish between speakers it was done on the basis of medium, not message. Purpose of the law was to protect broadcasters/promote competition, not to favor particular viewpoints.

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1. NOT RELEVANT FOR OUR CLASS: One basis for the decision was that different new media have different First Amendment applications. Because of the nature of the economic and technical barriers to entry to the cable market, and the lack of strict historical tradition of hands- off, cable was held more regulable than the press, yet probably less regulable than broadcast. Cf. Red Lion. vii. Hill v. Colorado (2000) – Statute prohibiting protests w/in 100ft of abortion clinics was upheld as content-neutral TPM regulation. Court reasoned 1) not a regulation of speech, but rather where it may occur, 2) not adopted b/c of disagreement with the message – applies equally regardless of viewpoint or subject matter 1. SCALIA, predictably, dissented – they laws are unambiguously content-based. “The vice of content-based legislation – what renders it deserving of the high std of SS – is not that it is always used for invidious, thought-control purpose, but that it lends itself to use for those purposes. A restriction that operates only on speech that communicates a message of protest, education, or counseling presents exactly this risk.” – somewhat convincing . . . viii. Renton v. Playtime Theaters (1986) REHNQUIST – law regulating the location of adult theaters upheld as content neutral TPM Zoning statutes regulation. Court reasoned that the regulation was targeted not at targeted at the the content of the speech but the secondary effects of the “harmful theaters in the communites such as crime and effect on property secondary effects” values. Furthermore the law had allowed for reasonable alternative of specific types avenues of communication. The city had made available some of speech are areas for adult theaters. subject to I.S. See 1. Note: Listener’s reaction to speech is NOT a secondary Renton v. effect. In Boos it was argued the concern was with the Playtime secondary effect in the form of the international law obligation to shield diplomats from speech that offends their dignity. Court didn’t buy it. ix. City of LA v. Alameda Books (2002) – Court again took up the secondary effects/zoning law, reversed the lower court’s invalidation at summary judgment phase of a zoning law prohibiting more than one adult store in the same building this time without a majority opinion: 1. O’CONNOR (Rehn&Scalia) – Content neutral TPM under Renton. Reasonable for city to believe that reducing concentration of the stores will reduce crime. City relied on evidence “reasonably believed to be relevant” to 2dry FX 2. KENNEDY concur – City shouldn’t have been foreclosed from making the requisite showing by Summ Judg. Reasoned 1) designation of adult ent zoning as content neutral is a legal fiction, “if the statute describes the speech

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by content, then it is content-based.” But still felt that zoning restrictions designed to decrease secondary effects and not speech should be subject to intermediate scrutiny. Zoning restrictions have p.f. legit purpose: limiting negative externalities of land use. Rebuts the usual presumption of unconstitutionality. 2) City must advance some basis to show that the regulation has purpose and effect of suppressing secondary effects while leaving quantity and accessibility of speech intact. Basically, the city has to prove that by making two adult stores split they aren’t actually making them close down. 2dry effects go down, but speech stays constant. a. A more nuanced approach – clearly departing from the rigidity of tiered review. 3. SOUTER Dissenting: agreed that Intermediate scrutiny was appropriate but said the zoning law “occupies a kind of limbo between full-blown, content-based restrictions and regulations that apply without any reference to the substance of what is being said.” Felt that the city should be forced to show empirical evidence that the bad secondary effects existed, were caused by the theaters, would be reduced by less concentration, and that speech would not be suppressed. They failed to do this and failed IS

b. The Doctrine of Prior Restraint (NOT ON OUR EXAM) i. Prior restraints are gov’t regulations on free expression prior to the time that the expression enters the marketplace of ideas 1. Admin. regs, judicial order, licensing, permits, etc. ii. Content based prior restraint highly suspect both substantively and procedurally 1. Substantively: presumptively unconstitutional, gov’t bears a heavy burden of justification – even some regulations that would be constitutional after the fact will fall as P.R.s 2. Procedurally: A gov’t censor must either permit the publication to occur or get a judicial determination that the speech should be stopped pre-pub. iii. Rooted in the historic meaning of freedom of the press. Blackstone: “Every freeman has an undoubted right to lay what sentiments he pleases before the public. To forbid this is to destroy the freedom of the press.” 1. Was the 1st Am just meant to codify this traditional understanding, or was it meant to fundamentally change the nature of free speech (as happened) 2. or was it just a Federalist restriction on the national gov’t? Only the States can limit free speech? iv. Gov’t regulation may chill speech, but P.R. Freezes it

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v. NY Times v. US (1971) – (Pentagon Papers Case) – Multivolume study of the Vietnam War leaked to papers, gov’t went to court to enjoin the publication. Nine separate opinions. VERY Brief Per Curiam opinion invokes prior restraint doctrine and says the gov’t did not meet the heavy burden of justifying the restraint. 1. Executive said the injunction should issue on showing of grave and irreparable harm to public interest 2. This didn’t cut it – Justices spoke instead of direct, irreparable, and immediate harm to the nation a. Is this like C&PD? Or Necessary to a VERY compelling gov’t interest? vi. Collateral Bar Doctrine – normally when a statute is overbroad you can ignore it and challenge it collaterally when applied to you. But with an injunction you are barred from collateral attack, you have to appeal directly 1. unless the injunction is “patently frivolous” – which is not very well defined . . .? vii. FOR OUR EXAM: Just remember – if the regulation is a censorship or judicial action and you invoke the prior restraint doctrine there is a heavier burden than if the gov’t was prosecuting under a criminal statute.

c. First Amendment Vagueness and Overbreadth Doctrine i. Vagueness and Overbreadth are facial challenges – if you win the law is declared unconstitutional and enforcement is enjoined 1. In as-applied challenges the law will still stand, just you aren’t bound by it. If you haven’t figured this out yet, maybe think about whether law school is right for you. 2. Concerns in both vagueness and overbreadth are risk of selective/arbitrary enforcement and the chilling effect. One practical reason to know the difference is that a judge might mistakenly uphold an overbroad law on a finding that all the terms are clear. ii. Vagueness – essentially a DP objection that the law lack clarity 1. When the gov’t regulates you have a right to know what they are prohibiting – 1st Amendment requires particular precision. 2. But some ambiguity does not necessarily mean vague 3. Standard: when persons of common intelligence are unable to know what conduct is proscribed the law is vague and unconstitutional a. Or 4. Administrators must be able to know the standards of criminality in order to effectively enforce it

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iii. Overbreadth – Generally a facial challenge requires that you show a law unconstitutional in almost all applications – but most laws have some conceivable unconstitutional applications. 1. Overbreadth permits a facial challenge to a law that regulates a substantial amount of protected speech a. Must be real and substantial overbreadth b. Overbreadth is “strong medicine” so courts require this high showing 2. Overbreadth is an exception to the third party standing rule: Even in a situation where your speech may be restricted, you can bring an overbreadth challenge on behalf of the rights of individual who would be hurt by it. a. Reasoning: First amendment is so vital that we are willing to allow some proscribable speech in order to stop the chilling of constitutional speech 3. Standard: A clearly identified body of activity that would be constitutional is being regulated (Munson) iv. Coates v. Cincinnati (1971) – Cincy ordinance makes it illegal for three or more people to assemble on the sidewalk and “conduct” themselves in a manner annoying to passersby 1. Overbroad & Vague v. City of Chicago v. Morales (1999) – Chicago Gang Congregation Ordinance: “Whenever a police officer observes a person whom he reasonably believes to be a criminal street gang member loitering in a public place with one or more persons, he shall order all such persons to dispers and remove themselves from the area.” Loiter defined as “remain in one place with no apparent purpose” 1. Vague: Too much discretion to police and too little notice. vi. Board of Airport Comm’rs v. Jews for Jesus (1987) – resolution banning all “First Amendment activities” in LAX airport. O’CONNOR: “the resolution . . . reaches the universe of expressive activity . . . even talking and reading, or the wearing of campaign buttons or symbolic clothing. Under such a sweeping ban, virtually every individual who enters LAX may be found to violate the resolution . . . .” 1. Overbroad

III. Fighting Words, Offensive Speech, and True Threats a. The following are content based regulation of speech under the categorical approach, often justified in two ways i. Speech that creates a danger of illegal violence and disorder Fighting ii. Speech equivalent to a verbal assault Fightingwords: Words and the Hostile Audience Problem words menb. Chaplinsky v. New Hampshire (1942) – Jehovah’s witness denouncing of avg intel religion as a racket tells a marshal outside city hall “You are a God- would damned racketeer and a damned fascist and the whole gov’t of Rochester understand as likely to cause the 69 avg add’ee to fight. Lucarelli Con Law II—Fall 2007 Prof. Dienes

are Fascists or agents of Fascists.” Convicted under statute of “addressing any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place.” Statute could have been overbroad but the N.H. Su.Ct. put a narrowing construction limiting law to those words that “have a direct tendency to cause violence by the persons to whom individually the words are addressed.” SCOTUS affirms, as limited the law is constitutional, as limited to “fighting words” i. “The test is what men of common intelligence would understand to be words likely to cause an average addressee to fight.” Or “[F]ace-to-face words plainly likely to cause a breach of the peace by the speaker . . . including profanity, obscenity and threats.” 1. an objective test based on the content of the words, not the actual context of the speaking

c. Genesis of the Categorical Approach in Chaplinsky: “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. . . . It has been well observed that such utterances are of such slight social value as a step to truth that any benefit that may be derived from them is clearly out-weighed by the social interest in order and morality.” Chaplinsky. i. some words are of such low expressive value that the limited First Amendment interest in protecting them is outweighed by the gov’t interest in regulating them ii. Fighting words: “those which by their very utterance inflict injury (Verbal Assault) or tend to incite an immediate breach of the peace (creating a danger of violence).” iii. Dienes equates the categorical approach with a utilitarian perspective: speech with no social valueno protection 1. Dienes also implies that this approach may ignore the personal liberty rationale of the 1st. The value in self- determination and self-actualization that it inherent in speech. Autonomy, etc. iv. Over time the categories identified in Chaplinsky have changed, some have been brought back within the protection of the 1st, but fighting words are still technically unprotected 1. RAV v. City of St. Paul has substantially changed the categorical analysis d. Cohen v. California (1971) HARLAN – D wore a shirt in the courthouse that said “Fuck the Draft” convicted of “maliciously and willfully disturb[ing] the peace . . . by offensive conduct.” D testified he wore it to make his feelings known on Vietnam War. Nobody engaged in nor threatened to engage in any act of violence. He did not say anything. Lower court applied a saving construction: offensive conduct is that which has a tendency to provoke others to acts of violence or disturb the police. Felt it was reasonably foreseeable that the jacket might do this. Held:

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Absent a more particularized and compelling reason the state cannot consistently with the 1st make the simple public display of the four letter word illegal. Offensive language is protected under the 1st amendment. i. Harlan starts off by saying that the law can’t be justified as content based, so the only way it can stand up is as a TPM regulation (Note: Harlan seems to consider all the “categories” and the other examples he mentions as TPM regs, not exceptions to the content-based presumption of unconstitutionality) 1. this law wasn’t limited to the courthouse or public buildings 2. not obscenity – not erotic, no “psychic stimulation” 3. not fighting words – not directed to a specific person, not inherently likely to provoke a violent reaction b/c nobody would take it as an insult. Harlan ties fighting words to a personally abusive epithet 4. not incitement – no one was violently aroused and that wasn’t Cohen’s intention 5. No Captive Audience – onlookers can turn their heads ii. The issue becomes, per Harlan, can California prohibit the one offensive word either because of the likelihood that it would provoke violence or as a protection of “public morality”? 1. No hostile audience – there was no evidence that anyone was ready to strike. Harlan rejects the logic behind this concept saying that it “amounts to little more than the self- defeating proposition that to avoid physical censorship of one who has not sought to provoke such a response by a hypothetical coterie of the violent and lawless, the States may more appropriately effectuate that censorship themselves.” 2. Harlan says that the purpose of the First Amendment is to produce such disturbance. The principle for prohibition is boundless – slippery slope. a. Harlan also refers to the emotive value of speech to the individual. Maybe there was no other way to express this particular sentiment. 3. Conviction overruled. e. HARLAN in Cohen refers to “The Hostile Audience Problem”: When can state power be used against a speaker who is likely to enrage a crowd to such a point as to provoke a violent response against him? i. Feiner v. NY (1951) – Court upheld the conviction. VINSON said he was not arrested for the form or content of his speech but the reaction in engendered. Says the speaker was inciting the crowd to riot and the police were justified in responding. If the speaker intentionally provokes a hostile reaction and there is real danger the speech is not protected.

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1. BLACK Dissent – the facts didn’t show imminent violence, but even if it did, in trying to prevent breaches of the peace the police can only interfere with a lawful speaker after they’ve made all reasonable efforts to protect him. ii. Skokie cases – late 70s, Nazi party wanted to march in Skokie, a predominantly Jewish Chicago suburb that had lots of Holocaust survivors. Village adopted ordinances designed to prevent this. SCOTUS invalidated. Later the village sued to enjoin the Nazis from displaying the swastika on grounds it was likely to foment a breach of the peace and constitute a nuisance. Ill. S.Ct. refused. That court also stated re: hostile audience – “If the actual behavior is not suff to sustain a conviction under a statute, then certainly the anticipation of such events cannot sustain the burden necessary to justify a prior restraint.” iii. Dienes says that the hostile audience cases seem like partly under Fighting Words and C&PD analyses – you look at content and context. Hate Speech and True Threats f. RAV v. City of St. Paul (1992) – D allegedly burned a cross in the yard of a black family, prosecuted under the St. Paul Bias-Motivated Crime Ordinace, which prohibited “placing on public or pvt property a symbol . . . including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger . . . in others on the basis of race, color, creed, religion or gender.” Minn. S.Ct. construed the statute as only applying to those expressions that would constitute “fighting words” under Chaplinsky. Assuming arguendo that all of the expression reached by the statute is “fighting words” the Court unanimously held the ordinance facially unconstitutional, but divided on reasoning i. Majority SCALIA: This is an unconstitutional content-based subcategorizaion within a category of proscribable speech. RAV v. City of St. Rejected the notion that the “categories” are without First Paul (1992) – Amendment protection. What such statement means, he wrote, “is content discrim that these areas of speech can, consistently with the First w/in a “category” amendment, be regulated because of their constitutionally is unconstitutional proscribed content . . . —not that they are categories of speech except for under entirely invisible to the Constitution, so that they may be made certain exceptions vehicles for content discrimination unrelated to their distinctively where there is no proscribable content.” E.g. the gov’t can proscribe libel, but it risk of viewpoint cant’ make the content based rule of just proscribing libel critical discrimination of the gov’t. He identified exceptions to this rule against content underlying the discrimination within the categories “where there is no danger of subcategorization. driving certain ideas or viewpoints from the market” 1. When the basis for the content discrimination consists of entirely the very reason the entire class of speech at issue is

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proscribable, so no danger of idea or viewpoint discrimination a. Prohibiting only obscenity which is the most patently offensive in its prurience. But not only obscenity that includes offensive political msgs b. Scalia asserts that fighting words are proscribable because of their intolerable mode of expressing the idea of the speaker (compare with HARLAN in Cohen considering FW as a TPM restriction) i. The St. Paul ordinance discriminates b/w types of fighting words not on how extreme the expression is, but on the viewpoint expressed 2. When the subcategorization is associated with secondary effects so that the reg is justified without reference to the content of the speech. Renton. a. A low prohibiting only obscene live performances involving minors 3. Where “the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is at foot. ii. Finding that the ordinance did not fit the exceptions, SCALIA applied SS, found the interest in ensuring the rights of groups that have been historically subject to discrimination compelling, but that the law is not necessary to further this interest because a less onerous alternative is in the form of prohibiting all fighting words – this would satisfy the interest w/o risk of viewpoint discrim. 1. Per Dienes – this logic could be applied to all bias laws; Scalia is targeting political correctness iii. WHITE Concurring (in judgment only): the categories are proscribable because they are worthless speech. Rejects the subcategorization rule. Also criticizes the “underbreadth” doctrine of Scalia. It can’t be that in order to meet strict scrutiny you have to prohibit MORE speech. Concurs in judgment on the ground that the statute is facially overbroad – it prohibits expression that by its utterance causes anger, alarm or resentment. Covers protected, though offensive speech. g. Wisconsin v. Mitchell (1993) – Court upheld a law that enhanced criminal penalties when the victim is selected b/c of race. Unlike RAV, the law punished conduct, not expression. While you can’t be punished for abstract beliefs, motive is often a factor in determining penalties. REHNQUIST identified greater individual and societal harm caused by bias crimes. No 1st Am barrier against evidentiary use of speech to prove motive, intent or elements of a crime. h. Virginia v. Black (2003) TRUE THREATS – another category of proscribable speech – (Constitutional to ban cross burning with intent

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to intimidate, not constitutional to use the fact that a cross was burned as p.f. evidence of that intent) Va. law prohibits cross-burning with the intent to intimidate. A cross burning is prima facie evidence of that intent. Combined case – 2 different appeals. D1 (Black organized a KKK rally on pvt property – invite only, visible from street): at trial, jury was instructed that intent could be inferred from the cross burning – this is basically enough to convict him if he choose not to put up a defense (as is his Constitutional right) Ds 2&3(Elliott & O’Mara, not KKK, burn a cross on the backyard of a black neighbor who had previously complained about their practice of using their backyard as a firing range) jury not instructed on p.f. provision, told P had to prove intent to intimidate. Va SuCt held law facially unconstitutional, felt it was “analytically indistinguishable from RAV” – a discrimination within the category of true threats, failed SS. In the alternative, the p.f. provision is subst’y overbroad. i. O’CONNOR (here for a majority) holds that you banning cross burning with the intent to intimidate is constitutional. Cross burning with an intent to intimidate fits within the definition of the True Threats category of proscribable content. “’True Threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individual.” A prohibition on True Threats “protects individuals from the fear of violence” and “from the disruption that fear engenders” in addition to protecting them from the possibility that the violence occurs. 1. So Cross burning with an intent to intimidate is a True O’CONNOR in Threat, but the statute only prohibits cross burning, not Virginia v. Black, swastikas, this looks like content discrimination w/in a Good example of category. O’CONNOR applies RAV, this fits in the first how to apply RAV exception (content discrim for the very purposes the entire exceptions to a category is proscribable). The law here isn’t viewpoint subcategorization discriminative – doesn’t matter why the cross is burned w/in a category of with the intent, or who the target is – burning a cross is a proscribable particularly virulent form of intimidation. Cross burning speech. is a more intense form of True Threat and embodies all the reasons by the category is regulable. ii. O’CONNOR (for a plurality) considers the Su.Ct. Va.’s alternate holding that the p.f. provision is unconstitutional on substantial overbreadth. Although she never says they find the provision substantially overbreadth, they agree that this provision makes the statute unconstitutional by: 1. taking away the need for the requisite intent to intimidate. a. If Black had decided not to defend, then the prosecution would never had to prove all the elements of the crime – they would not need to put evidence about intent up because the fact of burning

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the cross alone is sufficient to infer the intent. If Black does put on a Defense, the existence of the p.f. element still makes it much easier for the state to convict. This strips away the very reason why the State can ban the cross-burning 2. chilling protected speech by making it more likely that anyone burning a cross for ideological reasons will be convicted even w/o intent to intimidate iii. STEVENS Concurs: Categories are not protected iv. SCALIA Concur/Dissent: p.f. rule creates only a rebuttable presump – while some cross burners w/o the intent might be convicted this is not substantial overbreadth. Remand. v. SOUTER: Ban on cross burning is unpermissible viewpoint discrimination under RAV. Content based discrim, doesn’t meet SS, unconstitutional. P.f. evidence provision makes it worse by skewing in favor of prosecution. RAV exceptions were meant for cases where no likelihood of viewpoint discrim – this is not that. vi. THOMAS Dissents – says cross-burning is terroristic conduct, not speech. By requiring the intent to intimidate the legislature wrote out any expressive component. Would uphold the convictions. 1. Dienes disagrees – it is speech that causes harm and the gov’t is regulating b/c of the harm caused by the speech. Cross burning can be expressive without intimidation. Expressive Conduct/Symbolic Speech – The conduct conveys the message

Fighting Words/Clear & Present Danger/True Threats - Fighting words: focused on content, not circumstances – the words themselves cause the danger. Also, typically focused on a face-to- face, one-on-one type of speech - C&PD: Is a contextual analysis, a look at the actual danger about to occur. In the Brandenburg sense, the speaker is inciting the crowd. - True Threat focuses on the intent of the speaker to intimidate and protects from fear of violence in the recipient/recipients o This definition is unclear – to what extent is it a subjective/objective standard? o Is this more about intent/effect than context or content - Incitement prong of C&PD may correspond to fighting words in that it identifies a category of speech with no value - Many courts are moving towards incorporating fighting words into a C&PD analysis. - Per Dienes the Court has not upheld a fighting words conviction since Chaplinsky, they always overrule for reasons like overbroad or vague.

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IV. Expressive Conduct (A BREIF introduction) a. Conduct as speech: Read literally the First Am does not seem to apply – Nevertheless it is estab’d that conduct can involve expression in 2 ways: i. It can be the way we express an idea 1. picketing, handbilling, etc. – a vehicle for communication ii. It can be Symbolic Speech – the act IS the message 1. flag burning, nude dancing, campaign contributions, self- immolation, swastikas b. But, it cannot be that all conduct involves the First Am – so under what circumstances will we recognize conduct as expressive? c. One common test comes from Spence v. Washington (was there an intent to communicate a particularized message, given the circumstances was it probably the message would be understood by the audience – look to the nature of the conduct, the circumstances, environment). Spence was convicted of a flag mistreatement violation for affixing a peace symbol to a flag and displaying it in his window. Rev’d. d. U.S. v. O’Brien (1968) – D was convicted of burning draft card as prohibited by law. He did it in protest on the steps of the courthouse. He knew he was violating the act and says he did it to express his opposition to the Vietnam War. Says the act was unconstitutional as applied to him and as enacted (we skip the enacted argument). i. Majority WARREN – rejects the view that conduct becomes speech every time someone intends to express something. Something else is needed. But assuming arguendo that the conduct is expressive, what follows? The O’Brien Test: 1. Does the regulation further an important or substantial governmental interest 2. unrelated to the suppression of free expression a. typically this mirrors the content based/neutral examination. 3. are the incidental restrictions on the First Amendment freedom no greater than is essential to the furtherance of the interest a. NOT Strict Scrutiny, there is no requirement that the be “no less onerous alternatives.” b. HARLAN Concurring, would add requirement that there be adequate alternative avenues of expression i. Per Dienes, this is more applicable to TPM regulation, although the O’Brien and TPM Intermediate Review are largely the same. ii. Applying the test in O’Brien – the act is directed at conduct that interferes with the smooth and effective functioning of the selective service system 1. it is for this noncommunicative impact of the conduct and nothing else that he was (ostensibly) convicted

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2. The burdens on speech are only incidental to the nonspeech purpose 3. They are regulating because of the impacts of the destruction of draft card – not because of his politics (sure!) 4. Law is facially content neutral (Recall Turner I, look at form purpose and effect of the law) – gov’t punishes all knowing destruction, not just expressive destruction of the cards iii. The law substantially further the legit interest – it is directly related to the protection of the system and they see no alternative means that would more precisely and narrowly assure the smooth operation of the selective service system. e. Texas v. Johnson (1989) Political demonstrators protesting the Regan administration culminated in Johnson burning an American flag. He is convicted of desecrating a venerated object. Court affirms the Tex Su.Ct. holding that the law is unconstitutional as applied to Johnson i. BRENNAN lays out a very clear analytical framework for speech regulations (See “The Two Track Method” under II. The Structure of Speech Regulation, supra) 1. Does this constitute expressive conduct a. Tex conceded this and Brennan applies Spence. The burning of the flag was clearly meant to express opposition and it was understood as such 2. content based or neutral / related to suppression of expression? a. Two gov’t interests: Breach of the peace and preserving the flag as a symbol of nationhood and unity i. Says breach of the peace is not applicable – there was no threat of violence, no incitement, fighting words, etc. no state interest in preserving order ii. Preserve the flag is content-based: can only come in to play if desecration of the flag is expressive of a certain message 3. Strict Scrutiny applies, it fails. ii. REHNQUIST Dissent – would create a new category of unprotected speech for flag burning – it is of such low utility that it is equivalent to fighting words iii. STEVENS Dissent – this is conduct not speech. It is equivalent to a grunt or a roar and deserves no protection

And that’s it. Among the topics NOT COVERED in this course: Fundamental Rights Equal Protection Doctrine, Public Forum Analysis, Freedom of Religion, the State Action Doctrine . . .

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