Constitutional Law II
The Constitution limits government action that (1) deprives citizens of rights protected by the 14th amendment
(primarily equal protection), (2) promotes religion or limits religious practices, and/or (3) restricts speech.
-Fourteenth Amendment: Equal Protection
-State Action Doctrine & 5th Amendment DP Clause
-Levels of scrutiny
Strict scrutiny applies to fundamental rights and suspect classifications
Intermediate scrutiny is used when a classification is based on gender or status as a nonmarital child
Rational basis review applies to laws drawing distinctions based on social or economic reasons
-First Amendment: Religion
-Free Exercise
-Establishment Clause
-First Amendment: Speech
SCOTUS Tools for Constitutional Review: Precedent, Structure of the Constitution, Ordinary Meaning, Framers’ Intent,
Ratifiers’ Intent, Practices at the time that the Constitution was Adopted, History (whose version?), Tradition (according
to whom?), Natural Law Principles, Contemporary Social Policy Needs, Political Considerations, Anything Else?
MODULE 1
OVERVIEW OF THE FOURTEENTH AMENDMENT
Dred Scott v. Sandford (1857)
What was the issue presented by the case as framed by Taney?
Whether Dred Scott can sue under diversity jurisdiction in federal court as a citizen of the United States.
What else was decided by the case?
The constitutionality of the Missouri Compromise of 1820. Taney held that Congress had no power to bar slavery in the
territories because Negroes in bondage are property and the Constitution protects property owners from deprivation of
their property without due process of law.
What legal analysis and rhetorical tools did Taney use?
Ordinary meaning, framers’ intent, ratifiers’ intent, practices at the time the constitution was adopted, history, tradition.
What were the policy/political considerations behind the decision?
How does this case lead to the 14th Amendment, both textually and politically?
The 14th Amendment was enacted to overturn the Dred Scott decision.
The Post Civil War Amendments
In 1865, the Thirteenth Amendment gave constitutional sanction to President Lincoln's wartime Emancipation
Proclamation, declaring that neither slavery nor involuntary servitude shall exist within the United States. The Civil
Rights Act of 1866 was codified in the Fourteenth Amendment, over President Andrew Johnson's veto. Finally, the
Fifteenth Amendment was ratified to specifically address racial discrimination with regards to voting. Each of the three
post-Civil War Amendments ended with a section authorizing Congress to enact legislation to enforce its provisions.
Amendment XIII (1865)
Prohibits states from enacting slavery outside of criminal convictions. Individuals therefore receive the protections of
due process, and lose the ability to own slaves. Congress has the power to enforce these requirements and limitations
(e.g., Fair Housing Act, Trafficking Victims Protection Act) by addressing “the badges and incidents of slavery.”
Amendment XIV (1868)
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Section 1 was implemented to supersede Dred Scott and Black Codes: All persons bon or naturalized in the US, and
subject to the jurisdiction thereof, are citizens of the US and of the state wherein they reside.
State Action Doctrine: ….nor shall any state deprive any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the laws.
(Any entity that has the ability to govern is subject to the state action doctrine. Even voters in CA are subject to the state
action doctrine when we enact propositions. Applies to the federal government through the 5th amendment DP clause.)
Section 2: Representatives shall be apportioned among the several states according to their respective numbers,
counting the whole number of persons in each state, excluding Indians not taxed. –Section 2, Amendment XIV
Supersedes Article 1 section 2 clause 3 (3/5 clause) and later addresses suppression of voting rights by reducing number
of representatives…prelude to 15th amendment (1870)
Section 3 of Amendment XIV excludes confederates from holding office, supermajorities of both houses needed to
restore right to hold office.
Section 5 is the enforcement provision.
Amendment XV (1870)
Federal Privileges OR Immunities Clause
P or I: Concepts contained in the U.S. Constitution that place the citizens of each state on an equal basis with citizens of
other states in respect to advantages resulting from citizenship in those states and citizenship in the United States.
The Fourteenth Amendment's Privileges or Immunities Clause has virtually no significance in Civil Rights law. The clause
states: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United
States." This clause protects a person's rights as a citizen of the United States from unreasonable State Action or
interference.
The privileges or immunities of U.S. citizenship that cannot be unreasonably abridged by state laws include (1) the right
to travel from state to state; (2) the right to vote for federal officeholders; (3) the right to enter public lands; (4) the right
to petition Congress to redress grievances; (5) the right to inform the national government of a violation of its laws; (6)
the right to receive protection from violence when in federal custody; (7) the right to have free access to U.S. seaports;
(8)the right to transact business with and engage in administering the functions of the U.S. government; (9) the right to
have access to federal courts; and (10) the privilege of the writ of habeas corpus.
The Supreme Court has narrowly construed the Privileges or Immunities Clause of the Fourteenth Amendment since the
1873 Slaughter-House Cases. The case involved a Louisiana state law that gave one meat company the exclusive right to
slaughter livestock in New Orleans. Other packing companies were required to pay a fee for using the slaughterhouses.
These companies filed suit, claiming that the law violated the Privileges or Immunities Clause of the Fourteenth
Amendment. The Court upheld the Louisiana Monopoly law, ruling that the Privileges or Immunities Clause had limited
effect because it reached only privileges and immunities guaranteed by U.S. citizenship, not state citizenship. Because
the law in question dealt with states' rights, the Fourteenth Amendment had no effect. The Court ruled that the
Fourteenth Amendment was designed to grant former slaves legal equality, not to grant expanded rights to the general
population. In addition, the Court was concerned that a broad interpretation of the Fourteenth Amendment would give
too much power to the federal government and distort the concept of Federalism, which grants the states a large
measure of power and autonomy.
The Court has consistently followed the restrictive interpretation given the Privileges or Immunities Clause by this
decision. The clause has little significance today in invalidating state statutes that present a constitutional question.
When state laws infringe the fundamental rights of U.S. citizenship, the Court usually invokes the Equal Protection
Clause to analyze the constitutionality of the state action.
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However, the Supreme Court has used the Privileges or Immunities Clauses in Saenz v. Doe.
Slaughterhouse Cases: Section 1 of the 14th amendment prohibits state laws that abridge the privileges or immunities of
U.S. citizens. It protects the privileges of national citizenship, as opposed to state citizenship, and may not be used to
interfere with state control of the privileges and immunities of state citizenship.
Saenz v. Roe: The fundamental “right to travel” includes (1) the right of a citizen of one state to enter and leave another
state; (2) the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the
second state; and (3) for those travelers who elect to become permanent residents, the right to be treated like other
citizens of that state. Congress may not authorize the states to violate privileges or immunities of citizens protected by
the 14th amendment such as the fundamental right to travel. Durational residency requirements violate the
fundamental right to travel by denying a newly arrived citizen the same privileges and immunities enjoyed by other U.S.
citizens in the same state.
State Action Requirement & Congress’ Power of Enforcement
Civil Rights Cases: Congress may not regulate private parties for the purpose of preventing racial discrimination because
state action is required to invoke the protections of the 14th amendment. While the 13th amendment reaches private
as well as state actions, it gives Congress power to deal only with problems of involuntary servitude and not mere racial
discrimination. (Harlan’s Dissent: The 13th amendment was designed to destroy any and all burdens and disabilities
constituting badges of slavery and servitude such as racial discrimination, not just the institution of slavery.)
The constitutional protections of individual rights restrict only actions by the federal, state, or local government. As a
result, there is very limited judicial enforcement of injunctions/judgments, with the following exceptions: (1) 13th
amendment violations because state action is not required; (2) Private entities performing functions traditionally
reserved to the state; and (3) Significant state involvement in private action, i.e., entanglement or entwinement.
(1) State action is not required for 13th amendment violations
(2) Private entities performing functions traditionally reserved to the state
Marsh v. Alabama (Public Function Analysis): A private party will be treated as a state actor when performing public
functions traditionally reserved to the state (e.g., company town, recreational park, primaries, NOT shopping centers).
The public function analysis launched by Marsh was later cabined essentially to the facts of the company town and
white primary cases. In Jackson v. Metropolitan Edison, the majority opinion noted that the Court had found state action
present in the exercise by a private entity of powers traditionally exclusively reserved to the state. A public utility’s
cutoff of service is not state action because utility companies are not the government despite serving a public function.
(3) Significant state involvement in private action, i.e., entanglement or entwinement
Shelley v. Kraemer: The use of state courts to enforce a private action, such as racially restrictive covenants, constitutes
state action because of its close nexus to state activity (i.e., coercive power to deny the enjoyment of property rights).
Pages 704-711; 714-716
-Lessees in city owned and operated building—“mutual benefit” (lease revenue necessary to operation of facility
-Private creditor’s “attachment” of debtor’s property under ex-parte statutory procedure violated due process
-Peremptory challenges in civil proceeding
-Private interscholastic association (public and private school rule-making and enforcement)
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MODULE 2
RATIONAL BASIS REVIEW IN EQUAL PROTECTION
8/27 Introduction: Tiers of Scrutiny 500-501; 641-654
Tiers of scrutiny
-Equal protection not a literal guarantee – most laws classify and create distinctions
-Basic requirement that laws and governmental decisions affecting rights and status bear some rational relation to a
legitimate government purpose (goal is to avoid arbitrary laws)
-Some classifications are presumed more irrational than others: race, alienage, ender, birth out of wedlock
-Laws burdening “fundamental rights” (different from SDP fundamental rights) subject to heightened scrutiny
-Tiers or spectrum? Railway Retirement Board looks at the analysis as a spectrum analysis
-Means/ends analysis: purpose (ends) of law means chosen to achieve that purpose
E.g., rational basis: is there a legitimate gov purpose? (ends) / is the method chosen to achieve that purpose
rational? (means)
Rational Basis Review
-Used to review “economic or social legislation” that does not regulate a suspect or quasi suspect classification or a
fundamental right
Possible formulations: most deferential—if any set of act reasonable can be conceived that can sustain the classification
Railway Express Agency v. New York
What is unequal about the NYC regulation? What distinction does it make?
What is the purpose of the regulation?
What is the means chosen for achieving this purpose?
What arguments does Railway Express make that the distinction made by NYC is irrational? (Identity)
Vehicular advertisements are all equally distracting. It is unfair to prohibit some vehicular advertisements while allowing
others based on the identity of the owner of the truck.
What distinction could the local authorities have made btwn advertising for others and advertising for owners?
“It is no requirement of equal protection that all evils o the same genus be eradicated or none at all.”
Concurrence critique of majority rational basis (RB) analysis
“Rawlsian” critique: political minority “we are more likely to find arbitrariness in the regulation of the few than of the
many.” People who impose laws should be willing to be subjected to those laws themselves. (I.e., impose laws generally)
In the Lochner era the court applied a higher level of scrutiny to a number of economic laws because it violated the
constitutional right to freely enter into agreements. In absolute contrast, rational basis analysis is extremely deferential.
Animus: Congress intended to harm a classification of people (hippies). Animus is not rational. Former drug abusers,
however, are more likely to abuse drugs again and methadone users especially create social concerns as continuing use.
U.S. Railroad Retirement Bd. v. Fritz
Brennan Marshall dissent: Should court be as deferential in cases in which Congress may have been misled and vested
rights are lost… a challenged classification may only be sustained if it is rationally related to achievement of an ACTUAL
legitimate government purpose.
Rational Basis Review
-Is there a legitimate government purpose? (ends)
-Is the method chosen to achieve that purpose rational? (means)
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-Any conceivable basis for state decision? (rubber stamp)
BUT… Brennan/Marshall dissent: A challenged classification may only be sustained if it is rationally related to
achievement of an ACTUAL legitimate government purpose.
“When social or economic legislation is at issue equal protection affords wide latitude”
Must classifications of people, i.e., age, economics (poverty), mental/physical disability, were all categories SCOTUS
rejected for heightened scrutiny as quasi-suspect or suspect classifications.
Murgia: When individuals in a group have distinguishing characteristics relevant to the interests the state has the
authority to implement, the courts have been very reluctant to closely scrutinize legislative choices as to how those
interests should be pursued.
What interests/concerns/policies are reflected in this approach?
The word “suspect” is looking at the probable intentions of a legislative or governmental action with regard to that
group. There are some classifications that may be anchored in prejudice or directed at a group of people who were
politically disenfranchised or socially ostracized. Because of the nature of society’s treatment in the past, we look at
legislation about this group to make sure that there is some kind of legitimate goal and that the means chosen
substantially advance that legitimate goal. This classification actually supports some type of legislation.
Rigorous Rational Basis Review aka Rational Basis with a “Bite” (RBB with Teeth)
Moreno, Cleburne, Romer, Windsor, Lawrence
Lawmakers may not rely on a classification that is so unrelated to an asserted goal as to render the distinction arbitrary
and irrational. Rational basis analysis does not permit distinctions based on irrational prejudices or:
(1) Animus/desire to harm group;
(2) Unjustified fears
Romer two pronged equal protection analysis: (1) literal equal protection violation; (2) fails RB due to legislative intent.
U.S. v. Windsor: Literal EP Violation
(1) Incidents, benefits, obligations of marriage become unequal WITHIN same-sex marriage states; (2) broad reaching
over 1,000 statutes, as well as federal regulations; (3) deviation from usual deference to state definition of marriage; (4)
rejects state govt. and citizens’ deliberative processes, decision to expand marriage, correct perceived injustice.
U.S. v. Windsor: No rational basis for distinction animus & prejudice
(1) Discrimination of an “unusual character”; (2) Deprives same sex couple of federal benefits; (3) Interferes with equal
dignity accorded same sex marriage; (4) Based on moral disapproval; (5) Purpose to treat certain state recognized
marriages as second class; (6) Demeans same sex couples and families
Justice Scalia’s rational basis test (dissent): “It is a familiar principle of constitutional law that this Court will not strike
down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” (I.e., denying legitimate
purposes of the act imputes malice to coordinate political branches.)
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MODULE 3
EQUAL PROTECTION’S HEIGHTENED SCRUTINY OF SUSPECT CLASSIFICATIONS
Formal Equality/Formalism: Races are Limited “Equally”
Classifications that limit unequally
Strauder v. West Virginia (1880)
-Securing to recently emancipated race all the CIVIL rights the superior race may enjoy
-Scope of protections: whites and others for whom exclusion is inconsistent with the spirit of the law
(Expansion of slaughterhouse cases to whites, e.g., Celtic Irishman)
-Singling out and denying right to participate in the law is an assertion of their inferiority, stimulant to race prejudice
Plessy v. Ferguson (1896): The petition for the writ of prohibition averred that petitioner was entitled to every right,
privilege, and immunity secured to citizens of the United States of the white race. Held that the enforced separation of
races does not create a badge of inferiority—if so, solely because of how the colored race chooses such a construction.
Plessy Police Power Test: Every exercise of the police power must be reasonable and extend only to such laws as are
enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular
class. In determining the question of reasonableness, the legislature is at liberty to act with reference to the established
usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation
of the public peace and good order.
“The 14th amendment could not have been intended to enforce social, as distinguished from political equality.”
-Object of promoting equality before the law, could not in the nature of things extinguish color distinctions (other
references to “natural” differences)?
-Reasonable exercise of the police power because… in line with customs and used to preserve the public peace.
-Dissent: Color blind constitution (but Harlan still reproduces white supremacist statements, i.e., reassurances)
NAACP Strategy: Graduate schools affect fewer people, receives less emotional response, sets a precedent for Brown
Sipuel v. Unviersity of Oklahoma (1948): Admission of black students is required when no other in-state law school.
Sweatt v. Painter (1950): Admission of black students is required when other in-state law schools are inferior.
McLaurin v. Oklahoma Higher Education (1950): Black students admitted to previously all-white graduate institution
must not be segregated within the institution and must receive equal treatment in all aspects of the education process.
1952: The first black student is admitted to the University of Tennessee.
1954: 11 black students attend first day of school at Claymont High School, Delaware, becoming the first black students
in the 17 segregated states to integrate a white public school. Primary influence in Brown for peaceful integration.
Brown v. Board of Education (1954)
-History: The ratification of the 14th amendment took place before mandatory public education.
-Contemporary U.S. society places much more emphasis on public education imparting values of citizenship.
-Does segregation of children in public schools solely on the basis of race in and of itself deny EP of the laws?
The anti-subordination principle of Brown
Psychological effects are important considerations for equal protection analysis. Since the purpose of segregation is
subordination, separate educational facilities are inherently unequal and therefore unconstitutional. Racial
subordination must be eliminated in order to destroy second-class citizenship (which simultaneously stifles USSR
propaganda during the Cold War.)
Enforcement of the desegregation requirements were left largely to lower court litigation and to the political arena.
Arkansas School Riots 1957
“Pro-Segregation Riots Draw Federal Troops” From Eyes on the Prize
Green v. County School Board: Dual school systems (white/black components) were a constitutional violation
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Milliken v. Bradley: If the lower court wants to get around the problem of an interdistrict remedy then Detroit and the
legislature can redefine the schools districts as opposed to bussing across district lines.
Missouri v. Jenkins: Lower court had expensive plan to remedy school segregation. Court finds trial court exceeded role
by ordering tax increases in order to accomplish desegregation.
Oklahoma City v. Dowell: The continued judicial oversight of these desegregation orders is a real interference with
notions of separation of powers because the judicial branch is becoming involved in executive positions of power.
Essentially, the Court says the lower courts need to back away from these oversight roles. De facto segregation is now
tolerated due to federalism issues.
“Equal Application” of the Law
Formal Equality/Formalism/Facial Symmetry: Races are limited “Equally” in Plessy, McLaughlin (FL), Loving statutes
McLaughlin 1964
Suspect Classification / Strict Scrutiny
Classification based on race are constitutionally suspect, subject to the most rigorous scrutiny. Classification in most
circumstances irrelevant to any constitutionally acceptable legislative purpose.
Loving v. Virginia (1967) Millllllllllldrrrrrrrreeeeeeeeeed
“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And
but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated
the races shows that he did not intend for the races to mix.”
What kind of statute is being challenged in Loving? A statute manifesting equal application of the law.
What classifications does the statute make? Whites can only marry nonwhites or descendents of Pocahonta.
What level of scrutiny does the court apply? Strict scrutiny because race is a suspect classification.
What ends must the state prove? Compelling governmental interest and purpose
What means must they use? Only those necessary to the accomplishment of the legitimate purpose
What is the stated purpose of the State of Virginia’s statute?
What does the Court determine is the state’s actual purpose?
What does the means chosen by Virginia, indicate to the Court about the State’s actual purpose?
Palmore v. Sidoti (1984)
To pass constitutional muster, racial classification must be justified by a compelling governmental interest and must be
necessary to the accomplishment of its legitimate purpose.
Does it matter if the trial judge was factually correct? No, the effects of racial prejudice, however real, cannot justify a
racial classification removing an infant child from the custody of its natural mother in “the best interest” of the child.
Johnson v. California (2005)
Scalia: Prisoners do not have the same protections
How do you satisfy strict scrutiny?
The burden to establish the compelling state interest for strict scrutiny is on the government. Human life suffices.
It must also be narrowly tailored.
Korematsu: Classification aimed at a single race
All legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that
all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing
public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.
Korematsu Coram Nobis
The exclusion order ended on January 2, 1945.
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The case was reopened on January 19, 1983 when it was found that Korematsu’s lawyers did not have all the facts they
needed because several government agencies had withheld information and changed information. This even included
outright lying by the War Department to the Justice Department. The argument went that, since the Supreme Court had
been given inadequate and incorrect information, their decision would have been based on faulty premises and thus
should be reexamined. The end result was that the judge who heard the case found in favor of Korematsu, and his
conviction was to be erased from the records.
Korematsu’s Legal Legacy
In 1971, Pres. Nixon signed a law that said that Congress would have to approve anything like Executive Order 9066
being used again. President Ford signed a law that ended all power given by Executive order 9066.
August 10, 1988 saw a bill pass Congress that granted $20,000 reparations payment to each person who had been at an
internment camp (many had died of old age and other causes by then, of course).
In his 1998 book, "All the Laws but One," C.J. Rehnquist defended the basis for the Korematsu decision and stated
menacingly that "[t]here is no reason to think ... that future justices of the Supreme Court will decide questions
differently.“
While agreeing that some criticism of the 1944 ruling might be warranted, Justice Rehnquist seemed to endorse a
variation on the ancient maxim “inter arma silent leges” -- "in times of war, the law is silent." Rehnquist suggests that
while laws may "not be silent in times of war ... they will speak with a somewhat different voice."
Examples of Facially Discriminatory Laws
Loving v. Virginia: Prohibiting marriage between Whites and Nonwhites
Excluding person of Japanese ancestry from coastal areas during war time
Johnson v. CA: Separating and housing prisoners on the basis of race when they first enter a new corrections facility.
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Prohibiting black children from attending public schools with white children
Hernandez v. Texas (1954): Excluding Mexican-Americans and African-American from Grand and Petit Jury service.
When a law or policy is facially discriminatory or explicable only by race, the law/policy must meet strict scrutiny, i.e., be
necessary to achieve a compelling state interest. The state has the burden of proving a compelling state interest (CSI)
and that no alternative means are available to achieve the stated goal.
Facially NEUTRAL Laws and Policies that are Racially Discriminatory in Purpose, Effect, and/or Application
(1) Racially Discriminatory Application of Facially Neutral Laws
Cases like Strauder and Korematsu involved explicit disadvantaging racial classifications on the face of the law; cases like
Brown and Loving involved explicit advertence to race on the face of the law. Yick Wo is the leading early case
illustrating that a facially neutral law may impose purposeful discrimination because of the manner of its administration.
Yick Wo v. Hopkins (1886) [Non-Chinese Laundry Only]: This case extended the 14th amendment for the first time
beyond anti-black discrimination and held that arbitrary denials of fundamental economic rights include those based on
racial discrimination.
Facially neutral law: Need consent of board of supervisors to operate laundry in wooden building. Permits granted to all
but one non-Chinese applicant. No prints granted to any of the 240 Chinese applicants who applied.
Administration of the law directed so exclusively against a particular class of persons with a mind so unequal and
oppressive as to amount to a practical denial of equal protection.
(2) Racially Discriminatory Purpose underlying Facially Neutral Laws
Gomillion v. Lightfoot (1960) [Redefining city limits to exclude/disenfranchise black voters]: 15th amendment Violation.
Redistricting changed square district into 28 sided figure, eliminating all but 4 or 5 of 400 black voters.
Rule: Discriminatory effect is itself usually insufficient to violate equal protection BUT extreme disproportionate effect
can be used to infer a discriminatory purpose, tantamount to a mathematical demonstration of discriminatory purpose.
Griffin v. Prince Edward County (1964) [Public school’s closed]: Facially neutral action—school board withheld funding to
all public schools, making no mention of race, but providing grants for students to attend private school (grants only
benefitted white students, no private schools accepted black students). From 1959-1963 no formal education for black
students. Sole reason for plan was to ensure that black and white children would not attend school together. Opposition
to desegregation is an unconstitutional purpose.
Palmer v. Thompson (1971) [Pool’s closed]: No state action affecting blacks differently from whites is constitutional;
Dissent argues that closing the pools is an expression of official policy that Negroes are unfit to associate with whites.
Closing public swimming pools after desegregation order does not violate equal protection because there is no
affirmative duty for a city to operate swimming pools.
Court backs away somewhat from discriminatory intent analysis:
-Not all discriminatory intent is unconstitutional
-Court begins to emphasize “sole or predominant” discriminatory intent… evidence indicated financial concerns
-Notes difficulty of ascertaining motivation
-No constitutional right to access public swimming pools
(3) Facially Neutral Laws with Racially Discriminatory Effect
Washington v. Davis: The essential element of de jure segregation is a current condition of segregation resulting from
intentional state action. The differentiating factor between de jure segregation and so-called de facto segregation is
purpose or intent to segregate. In this case, the affirmative efforts of the DC PD to recruit black officers, the changing
racial composition of the recruit classes and of the force in general, and the relationship of the test to the training
program negated any inference that the DC PD discriminated on the basis of race.
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Discriminatory Intent Doctrine
Rejected applications argue there is a 5th amendment violation created by the hiring test that was neutral because
everyone had to take it but was racially exclusionary in effect.
District Court found the DC Police Dept. test had not been validated to establish its reliability for measuring subsequent
job performance, but found the test reasonably related to requirements of Police Academy training.
DC Circuit Court of Appeal found lack of discriminatory intent irrelevant and found discriminatory impact without need
for discriminatory intent was sufficient to establish constitutional violation.
SCOTUS says: The invidious quality of a law claimed to be racially discriminatory must be ultimately traced back to a
racially discriminatory purpose. The differentiating factor between de jure segregation and de facto segregation is
purpose or intent to segregate.
What is the difference in impact between a purposefully discriminatory law and a law that has a discriminatory impact,
but no such provable intent behind it? The legislation must have a rational basis.
Washington v. Davis: Proving Discriminatory Intent
Disproportionate impact can be an element of proof of discriminatory effect.
Difficulty explaining disproportionate impact on non-racial grounds.
When a plaintiff establishes a prima facie case of discriminatory intent the burden shifts to the state to show that
permissible racially neutral selection criteria and procedures were used to create the challenged result.
Circumstantial Evidence of Discriminatory Purpose
Arlington Heights v. Metropolitan Housing Corp.: Little about the sequence of events leading up to the decision that
would spark suspicion.
Arlington Heights held that to establish a prima facie case of an equal protection violation, the person alleging
discrimination must first show (through the use of legislative history, a pattern of events, or departures from usual
procedures) that discrimination was a motivating factor in the decision. Then, according to the Court, the burden shifts
to the city to show that the same decision would have resulted even if the discriminatory motive was not present.
Arlington Heights v. Metropolitan Housing Corp.: Proving Discriminatory Intent
(1) Historical background; (2) Events leading to the decision; (3) Departures from usual procedure; (4) Substantive
departures; (5) Legislative record
Proving Discriminatory Purpose after Arlington Heights
Rogers v. Lodge:
Hunter v. Underwood [Crime of Moral Turpitude]: It had disfranchised approximately ten times as many blacks as white.
Convention had purposely selected crimes that were thought to be more commonly committed by blacks. An additional
purpose to discriminate against poor whites does not render nugatory the purpose to discriminate against all blacks.
FHA Discriminatory Intent Exercise
Less Discriminatory Alternatives: Designated priority affordable housing, higher density replacements, temporary
relocation during rehabilitation
Race Consciousness in Public Employment
Wygant v. Jackson (1986) [Role Model Justification]: The Court rejected the argument that racial preferences during
layoffs need not be grounded on a finding of past purposeful discrimination but may attempt to remedy societal
discrimination by providing “role models” for minority school children, at least insofar as layoffs are concerned.
Fullilove v. Klutznick (1980) [Eskimo Kisses]: A minority program set aside 10% of federal funds granted for local public
works projects for businesses controlled by members of specified minority groups (i.e., “Negroes,” Spanish-speaking,
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Orientals, Eskimos, and Aleuts.) The Court was satisfied that Congress had abundant historical basis from which it could
conclude that traditional procurement practices, when applied to minority business, could perpetuate the effects of
prior [societal] discrimination. Accordingly, Congress reasonably determined that the prospective elimination of these
barriers to minority firm access to public contracting opportunities was appropriate to ensure that those businesses
were not denied equal opportunity to participate in federal grants.
Richmond v. J.A. Croson Co. (1989) [No Eskimos in Richmond]: Using the same minority set-aside program as Fullilove,
the Court found Richmond’s program was not narrowly tailored to remedy the effects of prior discrimination, in effect
adopting a strict scrutiny standard of review for race-conscious remedial measures at the state and local level.
Adarand Constructors, Inc. v. Pena (1995): Mountain Gravel awarded its subcontract to Gonzales, despite Adarand’s low
bid, because it received an additional payment for hiring a Latino. The Court decided that racial classifications, imposed
by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. In
other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling
governmental interests. Scalia says this is racial paternalism. Thomas says this is a badge of inferiority that creates a
sense of entitlement, equating benign prejudice to malicious prejudice. The dissent says federal affirmative action
programs are good because the effects of discrimination are still evident in our workplace, markets, and neighborhoods.
Define what Justice O’Connor meant when she wrote that the Court’s three general propositions with respect to
governmental racial classifications in public employment are skepticism, consistency, and congruence?
(1) Skepticism requires that all racial classifications be considered suspect for purposes of strict scrutiny; (2) Consistency
requires that the standard of review cannot vary by the race effected; (3) Congruence means the same standard applied
to the states applies to the federal government, i.e., the 5th amendment and the 14th amendment will both apply.
Race Consciousness in Education
Regents of Univ. of California v. Bakke (1978): Bakke was 32 when medical schools openly practiced age discrimination.
A separate committee admitted 16 members of the entering class based on race. California held this special admissions
program violated the 14th amendment and ordered Bakke’s admission.
What standard of judicial review should apply to UCD Medical School admissions policy?
Argument against applying traditional strict scrutiny: White males do not trigger Carolene Products footnote #4.
Argument for intermediate scrutiny: Classifications should not be colorblind where race is used to eliminate the effects
of past discrimination, so long as it is not the sole criterion used, i.e., racial quotas.
Holding: Racial and ethnic distinctions of any sort are inherently suspect and call for the most exacting judicial scrutiny.
Language of the 14th amendment uses “universal terms.”
Racial distinctions are odious to equality.
What is a sufficiently compelling interest?
Reduce historic deficits of traditionally disfavored minorities in the medical profession?
While racial classifications have been approved as remedial devices where a court has found prior racial
discrimination, UC Davis has no history of identifiable discrimination.
Counter the effects of societal discrimination?
UC Davis is in the business of educating, not formulating social and legislative policy.
Increase the number of physicians who will practice in underserved communities?
There is no showing that minority applicants will practice in disadvantaged areas.
Obtain the education benefits of diversity? (1st amendment right)
Under the academic freedom afforded to higher education, an ethnically diverse student body is a legitimate
and important purpose, but a school may not base its admissions policies solely on the criterion of race.
What is a constitutionally acceptable means of accomplishing the legitimate goal of diversity in higher education?
Why not allow reservation of a specified number of seats in each class for traditionally excluded minorities?
An admissions program focused solely on ethnic diversity would exclude others and hinder genuine diversity.
Why is Harvard diversity approach constitutionally acceptable?
11
Viewing race as a “plus” factor does not insulate the individual from comparison with all other candidates.
What does B/W/M/B dissent argue about differences between quota and diversity approaches?
For constitutional purposes, there is no difference between the two approaches. Both help minorities.
Grutter v. Bollinger [Michigan Law School] (2003): The Court endorses the view that student body diversity is a
compelling state interest that can justify the use of race as a “plus” factor in university admissions. The Law School’s
admissions policy promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to
better understand persons of different races. Consequently, student body diversity promotes learning outcomes and
better prepares students for an increasingly diverse workforce and society. The dissent says this does nothing for those
too poor or uneducated to participate in higher education, tars racial minorities as undeserving, and is unconstitutional
Amicus briefs: Diversity legitimizes political/military leadership and accordingly promotes national interests.
Admissions Procedures: Not based on a quota, race one factor among many others, holistic/individualized
review of each applicant, broad definition of diversity, does not unduly burden non-minorities.
Gratz v. Bollinger [Undergrad] (2003): Blacks, Hispanics, and Native Americans were awarded 20 points of the 100
needed to guarantee admission. The Court held this admissions program was not narrowly tailored (i.e., individualized)
to achieve the compelling interest in educational diversity. Dissent: Consistency would be fitting were our Nation free of
the vestiges of rank discrimination long reinforced by law. Equal protection cannot become an exercise in which the
winners are the ones who hide the ball. There is no suggestion that the College adopted its current policy in order to
limit or decrease enrollment by any particular racial or ethnic group, and no seats are reserved on the basis of race.
Parents United (2007): The Seattle School District employs a series of “tiebreakers” to determine who fills open slots at
oversubscribed schools. If an oversubscribed school is not within 10 percentage points of the district’s overall
white/nonwhite racial balance, it is what the district calls “integration positive,” and the district employs a tiebreaker
that selects for assignment students whose race will serve to bring the school into balance. Similarly, Jefferson County
requires all nonmagnet schools to maintain a minimum black enrollment of 15 percent, and a maximum black
enrollment of 50 percent. Rule: Racial balancing is not transformed from “patently unconstitutional” to a compelling
state interest simply by relabeling it racial diversity. Holding: Pure numerical racial balance between local school districts
is not a compelling governmental interest under the Equal Protection Clause. (Does this condone de facto segregation?)
Kennedy’s Race Conscious Narrow Tailoring: School boards may pursue the goal of bringing together students of diverse
backgrounds and races through other means, including strategic site selection of new schools; drawing attendance
zones with general recognition of the demographics of neighborhoods; allocating resources for special programs;
recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race.
Breyer Dissent: No case, not Adarand, Gratz, Grutter, or any other, has ever held that the test of “strict scrutiny” Means
that all racial classifications—no matter whether they seek to include or exclude—must in practice be treated the same.
Rather, they apply the strict scrutiny test in a manner that is “fatal in fact” only to racial classifications that harmfully
exclude; they apply the test in a manner that is not fatal in fact to racial classifications that seek to include. / Stevens
Dissent: The majestic equality of the law forbids rich and poor alike to sleep under bridges, to beg in the streets, and to
steal their bread.
Fisher v. Univ. of Texas [White Seminars] (2013): UT accepts the vast majority of its students through the Top Ten
Percent Law. UT reviews all other applicants based on Academic and Personal Achievement Indices. The Personal
Achievement Index now rests in small part on an applicant’s race after Grutter this was permissible to promote diversity.
Constitutional Argument #1: UT entitled to deference based on academic freedom and institutional autonomy.
Constitutional Argument #2: The University’s admissions policy is modeled after approved “plus” programs.
Unconstitutional Argument #1: Top 10% Law is an adequate race-neutral alternative to achieving diversity.
Unconstitutional Argument #2: UT’s admissions policy is unduly burdensome in that it discriminates against
some students, like Asian applicants, by treating them as members of an overrepresented, disfavored, race.
Gender Discrimination
Gender Classifications vs. Racial Classifications
12
How is the characteristic of gender similar to that of race? Immutable characteristic, second class citizenship, scientific
research trumped by traditional stereotypes, few elected officials.
How does gender classification differ from racial classification? Physical differences, population demographics, child
bearing capability, right to vote and participate in the political/professional sphere.
How have U.S. social understandings about gender changed over time? By 1900, all except 3 states had enacted Married
Women’s Property Acts that placed married women on an equal footing with their husbands with respect to contracts,
earnings, the ownership of property, and the right to sue or be sued. In 1920, the 19th Amendment was ratified, albeit
construed narrowly: Voting has no implied right against sex discrimination (e.g., jury service, state-licensed occupations.)
Equal Rights Amendment (ERA): “Equal rights regardless of sex” passed Congress but failed ratification in the
states. The leader of the Stop-ERA campaign was Phyllis Schlafly who argued that the ERA would bring many
undesirable changes to American women, such as eliminating alimony, child custody, and single-sex bathrooms.
RB Deference to Laws Maintaining Separate Spheres
Bradwell v. State [Nature of Things Argument] (1873): The destiny and mission of a woman is to be a wife and mother.
Holding: It is not a federal privileges or immunities violation to deny women admission to the state bar.
“The natural and proper timidity and delicacy of the female evidently unfits it for many of the occupations of civil life.”
Minor v. Happersett [Not Mentioned in Writing Argument] (1874): Women are not persons under the 14th amendment.
Goesaert v. Cleary [Barmaid Case] (1848): No woman could obtain a bartender’s license unless she was the wife or
daughter of the male owner of a licensed liquor establishment. Holding: Benign/protective state action is constitutional.
Rational Basis with a Bite
Reed v. Reed [Estate Administrators] (1971): Idaho Probate Code specified that in contested situations, males must be
preferred to females in appointing administrators of estates. The Court found that the preference for one gender over
the other did not bear a rational relationship to the legitimate state objective of reducing the probate work load.
Frontiero v. Richardson [Dependent Military Spouses] (1973): Federal law gave automatic allowance to military wives,
but required servicewomen to prove their husband’s dependency. Brennan proposed applying a strict scrutiny standard,
but could not obtain a majority of votes. Instead, the Court relied on Reed, holding any statutory scheme which draws a
sharp line between the sexes, solely for the purpose of achieving administrative convenience, violates equal protection.
The “Exceedingly Persuasive” Formulation
Craig v. Boren (1976): An Oklahoma statute regulating the sale of 3.2 beer allowed women to purchase such beer at age
18, and men at age 21. The statistics established that .18% of females and 2% of males from 18-20 years old were
arrested for drunk driving. Certainly if maleness is to serve as a proxy for drinking and driving, a correlation of 2% must
be considered an unduly tenuous “fit.” Dissent: Men challenging a gender-based statute which treats them less
favorably than women should not invoke a more stringent standard of judicial review. Furthermore, under rational basis,
the state could reasonably infer that the incidence of drunk driving is a good deal higher than the incidence of arrest.
Intermediate Scrutiny
Mississippi University for Women v. Hogan [Nursing School Case] (1982): The Court invalidated the School of Nursing’s
single-sex admissions policy. Analysis: That this statute discriminates against males rather than against females does not
exempt it from scrutiny or reduce the standard of review. Moreover, the party seeking to uphold a statute that classifies
individuals on the basis of their gender must carry the burden of showing an exceedingly persuasive justification for the
classification. The burden is met only by showing that the classification serves important governmental objectives and
that the discriminatory means employed are substantially related to the achievement of those objectives.
If the statutory objective itself reflects archaic and stereotypic notions, the objective itself is illegitimate.
A state may establish a “compensatory” justification only if members of the gender benefited by the classification
actually suffer a disadvantage related to the classification.
Rather than compensate for discriminatory barriers face by women, MUW’s policy of excluding males tends to
perpetuate the stereotyped view of nursing as an exclusively woman’s job.
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MUW’s policy of permitting men to attend classes as auditors fatally undermines its claim that women, at least those in
the School of Nursing, re adversely affected by the presence of men.
Gender-Based Peremptory Strikes
J.E.B. v. Alabama (1994): The Court held that peremptory challenges to jurors on the basis of their gender are
unconstitutional in a paternity action to the father of an out-of-wedlock child.
All-male public military academies
United States v. Virginia (1996): VMI uses an Adversative method and is financially supported by Virginia. In order to
maintain financial support from the State, the school must (1) admit women or (2) establish a parallel institution.
Intermediate scrutiny standard: An exceedingly persuasive justification must be genuine, not hypothesized or
invented post hoc in response to litigation. And it must not rely on overly broad generalizations about different
talents, capacities, or preferences of males and females (to perpetuate legal, social, economic inferiority).
Concurrence: After Hogan, the State was entitled to reconsider its policy with respect to VMI, and not have
earlier justifications, or lack thereof, held against it. Even if diversity in educational opportunity were the State’s
actual objective, however, the State’s position is still problematic in denying a comparable women’s institution.
(1) The VMI methodology could be used to educate women: Some women can meet the physical standards VMI
now imposes on men. (Aftermath: After unsuccessfully exploring privatization, VMI began admitting women.)
(2) Virginia failed to provide any comparable single-gender women’s institution: VWIL does not qualify as VMI’s
equal in military training. Furthermore, VWIL’s student body, faculty, course offerings, and facilities hardly
match VMI’s. Nor can the VWIL graduate anticipate benefits associated with VMI prestige and alumni network.
Sex Equality and Sex Differences
Traditional equal protection principles require that only those who are similarly situated should be treated alike.
Pregnancy, average differences between the sexes in height, weight, strength, speed, and stamina are real differences.
Pregnancy Classifications
Geduldig v. Aiello (1974): The Court held that exclusion of “disability that accompanies normal pregnancy and childbirth”
from California’s disability insurance system did not constitute invidious discrimination under the Equal Protection
Clause because lawmakers may constitutionally exclude pregnancy like any other physical condition, on a rational basis.
Dissent: California singled out for less favorable treatment a gender-linked disability peculiar to women.
Note: Congress amended Title VII to expressly forbid discrimination on the basis not only of sex but also of pregnancy.
Gender-Specific Statutory Rape Laws
Michael M. v. Superior Court (1981): Statutes are permissible where the gender classification is not invidious, but rather
realistically reflect the fact that the sexes are not similarly situated in certain circumstances. A legislature may provide
for the special problems of women: A criminal sanction for statutory rape imposed solely on males thus serves to
roughly equalize the deterrents on the sexes, whereas a gender-neutral statute would frustrate its interest in effective
enforcement because a female will not report violations when she herself is subject to criminal prosecution.
Exclusion of Women from the Military Draft
Rostker v. Goldberg (1981): The constitution requires that Congress treat similarly situated persons similarly, not that it
engage in gestures of superficial equality. Note: Congress repealed the statutory bar on women’s eligibility for combat.
Discrimination against Unmarried Fathers
Caban v. Mohammed (1979): Invalidated law granting Mom but not Dad of an illegitimate child right to block adoption.
Nguyen v. INS (2001): Children with citizen-mothers are automatically considered citizens at birth, but children with
citizen-fathers must meet three conditions to be considered citizens at birth (i.e., blood relationship, promise of financial
support, and formal recognition of paternity.) The rationale is that a child needs a relationship with an unwed dad.
Question: If women can’t have it both ways, must they decide which way they want to have it?
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Gender-Based Purpose and Effect
Facially Neutral Inquiry
Personnel Administrator of Mass. v. Feeney [Lifetime Veteran Preference] (1979): When a facially gender-neutral statute
is challenged on the ground that its effects upon women are disproportionately adverse, a 2-fold inquiry is appropriate:
(1) Whether statutory classification is neutral, i.e., not gender-based;
(2) Whether the adverse effect reflects invidious gender-based discrimination.
An intent to exclude women from significant public jobs was not at work in this law. To reason that it was is merely to
restate the fact of impact, not to answer the question of intent.
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 adverse effects upon an identifiable group.
Gender Discrimination Recap
-Exceedingly persuasive justification or intermediate scrutiny?
-Facially neutral/disparate impact
-Proof of discriminatory motive
(distinction established for the purpose of discrimination)
-Both standards should be addressed on an exam because it’s “up in the air”
Single-Sex Classroom Exercise
In Beloit the ACLU has sued in U.S. District Court on behalf of a mother whose three daughters attended the school.
Winland says the classrooms met U.S. Department of Education requirements. Single-sex classes are a "controversial
way to teach," he said, but such students outperformed coeds on tests.
(1) ACLU attorneys representing parents of girls who found that the single sex classroom experience was discriminatory:
States must show that a sex-based government action serves important governmental objectives and that the
discriminatory means employed are substantially related to the achievement of those objectives. There must be an
exceedingly persuasive justification for the action. This heightened review standard prevents classifications that
perpetuate the legal, social, and economic inferiority of women.
While single-sex education may provide benefits to some students, Beloit has not shown that young women are
afforded substantially equal opportunities with regard to conduct in the classroom.
(2) Attorney representing parents of girls and boys who want the School District to continue providing the single sex
classrooms: Single-sex education is supported by democratic processes and should not be prohibited by the order of a
District Court.
(3) Attorneys representing the School District that provides the single sex classroom option: Beloit has an important
interest in providing superior education, and single-sex instruction is an approach substantially related to this goal. This
is demonstrated by students in single-sex classes outperforming coeds on standardized tests.
Affirmative Action for Women
Property Tax Exemptions
Kahn v. Shevin (1974): The Court applied a deferential standard of review to uphold a state property tax exemption for
widows (but not for widowers). The state tax law was reasonably designed to further the state policy of cushioning the
financial impact of spousal loss upon the sex for which that loss imposes a disproportionately heavy burden.
Alimony after Divorce
15
Orr v. Orr(1979): Purpose may be effectuated without placing burdens solely on husbands. It would not cost the State
any more if it were to treat men and women equally by making alimony burdens independent of sex. Even statutes
purportedly designed to compensate for and ameliorate the effects of past discrimination must be carefully tailored,
since they carry the inherent risk of reinforcing stereotypes about the proper place of women and their need for special
protection.
Social Security Benefits
Califano v. Webster (1977): Allowing women, who as such have been unfairly hindered from earning as much as men, to
eliminate additional low-earning years from the calculation of their retirement benefits works directly to remedy some
part of the effect of past discrimination. The legislative history also reveals that Congress purposely enacted the more
favorable treatment for female wage earners to compensate for past employment discrimination against women.
Califano v. Goldfarb (1977): Discrimination against men may also be treated as invidious discrimination.
Other Classifications arguably warranting Heightened Scrutiny
Which aspects matter most: the immutability of a characteristic, the imposition of political disadvantage based on that
characteristic, the social prejudice and social subordination, or stereotyping and stigma based on that characteristic?
Illegitimacy
Intermediate scrutiny
Clark v. Jeter: (spent time on this in class, not in text)
Alienage
The federal government has considerably greater latitude under the immigration and naturalization power to
discriminate against and among noncitizens given the predominant federal interest in immigration.
Note that the cases that follow involve legally resident aliens. Undocumented aliens-those who are not legally resident
in the country have not been accorded heightened equal protection scrutiny, with the exception of undocumented
children barred from attending public school.
Strict Scrutiny for many State Alienage Classifications
Graham v. Richardson (1971): Aliens as a class are a discrete and insular minority warranting strict scrutiny.
Graham/Griffiths/Sugarman: The State cannot deny aliens welfare benefits, bar admissions, or menial civil service jobs.
The governmental Function Exception
The state need only justify its classification by a showing of some rational relationship between the interests
sought to be protected and the limiting qualification for police officers and public school teachers.
Notaries Public
Bernal v. Fainter (1984): The political-function exception must be narrowly construed. In finding the Dougall exception
inapplicable to notaries public, the Court relies on the fact that their duties were essentially clerical and ministerial. In
the absence of either policymaking responsibilities or broad discretion of the type exercised by teachers and other
public employees, the duties would not be deemed to be within the governmental function exception.
Alienage restrictions and federal preemption
Toll v. Moreno (1982): Federal preemption stands for the broad principle that state regulation not congressionally
sanctioned that discriminates against aliens lawfully admitted ot the country is impermissible if it imposes additional
burdens not contemplated by Congress.
Federal Restrictions on Aliens
The national immigration and naturalization power has often been read as virtually plenary, entitled to PQ deference.
Public Employment
Hampton v. Mow Sun Wong (1976): Lower executive branches may not exclude aliens.
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Module 4
Fundamental Interests Strand of Equal Protection
Procreation: Skinner v. Oklahoma [Sterilization of Blue Collar Felons]: Unconstitutional deprivation of fundamental right.
Under Equal Protection the distinction between white collar criminals and blue collar criminals is invalid discrimination.
Marriage: Loving v. Virginia [Mildred]: Denial of equal protection based on race, but the Court also referred to the
fundamental right to marry as being protected by equal protection as well as substantive due process.
Justice O’Connor in Lawrence v. Texas which made sodomy between same sex persons illegal, she argued that this
should be found unconstitutional under an equal protection analysis but the Court applied a SDP analysis.
Voting (SEP): 15th amendment (race), 19th amendment (sex), 24th amendment (no poll taxes), 26th amendment (age)
Access to Courts (SEP):
Fundamental Interest in Voting
Justice Stone’s footnote 4 in Carolene Products uses “restrictions upon the right to vote” as a specific illustration of
restrictions on “political processes” that warrant special judicial vigilance.
The state’s interest/power with respect to voting includes ensuring competent, sane, informed, educated voting, as well
as uniform treatment and weight (one person one vote), and preventing voter fraud and other corruption.
Harper v. Virginia (1966): The right to vote in state elections is not expressly mentioned in the Constitution, but once the
franchise is granted to the electorate, equal protection restrains the States from fixing voter qualifications which
invidiously discriminate. / To introduce wealth or payment of a fee as a measure of a voter’s qualifications is to
introduce a capricious or irrelevant factor. In this context—as a condition of obtaining a ballot—the requirement of
paying a fee causes invidious discrimination that violates equal protection. Dissent: Rational basis supports a poll tax.
Kramer v. Union Free (1969): NY residents could only vote in the school district election if they (1) had real property, or
(2) had children. This interest is not narrowly tailored to satisfy strict scrutiny because it excludes interested parties.
Test: If a law grants the right to vote to some bona fide residents of requisite age and citizenship and denies the
franchise to others, the Court determines whether the means are necessary to promote a compelling state interest.
Limited Purpose Elections and Special Purpose Governmental Units
Cipriano v. Houma (1969): The Court invalidated a LA law permitting only property owners to vote in elections regarding
the issuance of municipal utility bonds, noting that the bonds were paid entirely from operations and not property taxes.
Phoenix v. Kolodziejski (1970): The Court extended Cipriano to general obligation bonds, holding the interests of those
who did and did not own property were not sufficiently substantial to justify excluding the latter from the franchise.
Salyer Land Co. v. Tulare Lake (1973): Kramer is inapplicable to the district’s landowners-only election concerning water
storage because of its limited purpose and the disproportionate effect of its activities on landowners as a group.
Disenfranchisement of Felons
Richardson v. Ramirez (1974): The reduced representation sanction of § 2 of the 14th Amendment is specifically
inapplicable to denials of the vote “for participation in rebellion or other crime.”
Voter ID Requirements
Crawford v. Marion County Election Board (2008):
Voting Districts
District lines are drawn by state legislatures under a constitutional requirement that federal districts be equipopulous
under the principle of “one person, one vote.” These are cases regarding racial preferences in electoral districting:
Deferential Review
United Jewish Organizations v. Carey (1977): NY had redrawn districts to maintain black representation. The Court held
that NY had done no more than authorized under the Voting Rights Act. The dissent called it racial gerrymandering.
Strict Scrutiny
17
Shaw v. Reno [Shaw I] (1993): District 12, shaped like a snake, gobbles enclaves of black neighborhoods. The majority
held that this constitutes political apartheid. Dissent: This is benign discrimination to ensure minority representation.
The Role of a District’s Irregular Shape
Miller v. Johnson (1995): Shape is relevant not because bizarreness is a necessary element of the constitutional wrong or
a threshold requirement of proof, but because it may be persuasive circumstantial evidence that race for its own sake,
and not other districting principles, was the legislature’s dominant and controlling rationale in drawing its district lines.
The logical implication is that parties may rely on evidence other than bizarreness to establish race-based districting.
Predominant Factor Standard
Bush v. Vera (1996): For strict scrutiny to apply, race must be the predominant factor motivating the legislature’s
redistricting decision.
Applying the Predominant Factor Standard
Lawyer v. Department of Justice (1997): Drawing districts lines based on depressed economic condition is constitutional,
even if it creates a majority-minority district of African Americans.
Plaintiff’s Burden
Easley v.Cromartie (2001): Those who claim that a legislature has improperly used race as a criterion must show at a
minimum that the legislature subordinated race-neutral districting principles to racial considerations. / The party
attacking the legislatively drawn boundaries must show at the least that the legislature could have achieved its
legitimate political objectives in alternative ways that are comparably consistent with traditional districting principles
and that those districting alternatives would have brought about significantly greater racial balance.
Fundamental Right to Access to Courts
Economic Barriers and the Criminal Process
Transcripts on Appeal
Griffin v. Illinois (1956): Griffin held that a state must provide a trial transcript or its equivalent to an indigent criminal
defendant appealing a conviction on nonfederal grounds. The ability to pay costs in advance bears no rational
relationship to a defendant’s guilt or innocence. It is true that a State is not required by the Constitution to provide
appellate courts or a right to appellate review at all. But that is not to say that a State that does grant appellate review
can do so in a way that discriminates against some convicted defendants on account of their poverty.
Counsel on Appeal
Doulas v. California (1963): Extended Griffin by holding that a state must appoint counsel for an indigent defendant for
“the first appeal, granted as a matter of statutory right, from a criminal conviction. Dissent: Equal protection does not
impose on the States an affirmative duty to lift the handicaps flowing from differences in economic circumstances.
Ross v. Moffitt (1974): The Court refused to extend Douglas to require provision of counsel in discretionary appeals.
Halbert v. Michigan (2005): Law denied appointed appellate counsel to indigents convicted by guilty or nolo contendere
pleas. Due Process and Equal Protection Clauses require the appointment of counsel for defendants seeking first-tier
review from convictions on pleas. Dissent: Undeniable difference btwn defendants who plead guilty and not guilty.
No Fundamental Interest in Food, Shelter, Education
No protecting the poor through the fourteenth amendment: The Court declined to extend the fundamental interests
branch of EP from the narrow areas of voting and court access (and during the life of Shapiro, interstate travel.)
Welfare Benefits
Attorneys were arguing that one cannot lose welfare benefits without receiving due process, i.e., a full and fair hearing.
Dandridge v. Williams (1970): No longer the Lee Optical era—14th Amendment gives federal courts no power to impose
upon the states their views of what constitutes wise economic or social policy. The classification is constitutional if it has
a reasonable basis. Dissent: The individual interest at stake distinguishes this case from the business regulation EP cases.
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Housing
Lindsey v. Normet (1972): Constitution does not provide judicial remedies for landlord tenant relationships is a
legislative not a judicial function.
Education
San Antonio Independent School Dist. v. Rodriguez (1973): The system of alleged discrimination and the class it defines
have none of the traditional indicia of suspectness; the class is not saddled with such disabilities, or subjected to a
history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command
extraordinary protection from the majoritarian political process. Texas has provided what it considers to be an adequate
base education for all children. P argues for effective speech and informed electoral choice. The Court refuses to
overturn Dandridge or Lindsey precedent. Solutions must come from the lawmakers and from the democratic pressures
of those who elect them. Concurrence: The function of equal protection is simply to measure the validity of
classifications created by state laws. Dissent: Skinner guarantees the right to procreate. Reynolds guarantees the right to
vote in state elections. Griffin guarantees the right to appeal from a criminal conviction. These are interrelated with
constitutional guarantees like education and free speech and the right to vote.
Plyler v. Doe (1982): The Court rejects the claim that illegal aliens are a suspect class. Regardless, Justice Brennan found
inadequate the state’s proffered interests in discouraging illegal immigration, avoiding burdens on public schools, and
reserving public education for those likely to reside later within the state. He concluded that if the state is to deny a
discrete group of innocent children the free public education that it offers to other children residing within its borders,
that denial must be justified by a showing that it furthers some substantial state interest. Dissent: This is a quasifundamental-rights analysis for a quasi-suspect-class.
Martinez v. Bynum (1983): A “bona fide” residence requirement for public education is constitutional.
Kadrmas v. Dickinson Public Schools (1988): User fee for transporting students is constitutional.
(“Unlike the children in Plyler, Kadrmas is not penalized by the government for illegal conduct by her parents.”)
Equal Protection
Levels of Scrutiny
Means
Ends
Rational Relation
Legitimate Conceivable
Purpose (Not Arbitrary or
Irrational Prejudice)
Important Actual Purpose
(Exceedingly Persuasive
Justification)
Rational Basis
Sometimes with Bite
Intermediate
Substantial Relation
Strict Scrutiny
Necessary
Compelling Actual Purpose
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Gov. Burden
Burden/Proof
N/A
Challenger
Offer Concrete Proof
Government
Least Restrictive
Alternative
Government
Module 5
First Amendment: Free Exercise & Establishment Clause
Freedom of Religion
Establishment
Standard of Review
Financial Aid
Indirect aid to schoolchildren
Direct aid to colleges and hospitals
Tax exemptions
School activities
Religious displays
Ten Commandments
Holiday displays
Free Exercise
Religious belief
Religious conduct
Targeting religious conduct
Generally applicable laws
Religious freedom restoration act (federal actors only)
Ministerial Exception to Discrimination Laws
State action is analyzed under the 1st through 14th amendments.
Federal Government is analyzed under the 1st amendment. (City of Baltimore v. Barron Case.)
First Amendment Religion Clauses
The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof.
History of the Religion Clauses
The Dominant View: Voluntarism and Separatism
Voluntarism means that the advancement of a church would come only from the voluntary support of its followers and
not from the political support of the state. Separatism means that both religion and government function best If each
remains independent of the other.
Everson v. Board of Education (1947): The Court held that a state may, consistent with the Establishment Clause, pay to
bus children to and from parochial school.
The views expressed in Virginia were codified in the First Amendment: Individual religious liberty could be achieved best
under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions, or to
interfere with the beliefs of any religious individual or group.
The Minority View: Nonpreferentialism
The minority view suggests that the First Amendment was intended merely to prevent the establishment of a national
church or giving any religion a preferred status.
Wallace v. Jaffree (1985): Dissent took issue with the “wall of separation” metaphor (attributed to Jefferson).
Rosenberger v. Rector (1995): The Court held that the Establishment Clause did not bar Virginia from including a
religious magazine among the student activities it subsidized because there are historical examples of public funding of
religion that date back to the time of the founding. E.g., Madison recommended the chaplain system in the House.
Reply to the Minority View
20
Lee v. Weisman (1992): A case invalidating recitation of a prayer at a middle school graduation ceremony. Justice Souter
rebutted the minority view with the framers’ intent: The House rejected a version that ensured only that no religion
enjoyed an official preference over others, and deliberately chose instead a prohibition extending to laws establishing
religion in general.
The Relevance of Original History
Abington School Dist. v. Schempp (1963): Struck down the practice of Bible-reading in public schools. Our religious
composition makes us a vastly more diverse people than were our forefathers. They knew differences chiefly among
Protestant sects. Today the Nation is far more heterogeneous.
“A too literal quest for the advice of the Founding Fathers seems to me futile and misdirected. The historical record is
ambiguous and statements can be found to support either position.”
Application of Religion Clauses to the States
At the time the First Amendment was adopted, several states (unlike Virginia) had officially established churches. One of
the motivations of the Establishment Clause was arguably to bar Congress from interfering with state establishments.
Nonetheless, the Court, beginning with Everson, has assumed that the Establishment Clause was incorporated into the
Fourteenth Amendment and was therefore applicable to the states—without serious discussion of the federalism
problem, or the textual difficulty of using the word “liberty” in the Fourteenth Amendment as the incorporation route.
Reconciling the Religion Clauses
Establishment and free exercise protect the individual’s freedom of religious belief and practices, promote neutrality,
and occasionally require permissible accommodation.
The Definition of “Religion”
Universal Military Training and Service Act of 1948 exempted from combatant military service those persons who were
conscientiously opposed to participation in “war in any form” by reason of their “religious training and belief.” The latter
phrase was defined by the law as a “belief in a relation to a Supreme Being involving duties superior to those arising
from any human relation, but not including essentially political, sociological, or philosophical views or a merely personal
moral code.
U.S. v. Seeger [“Open” Religion] (1965): Court interpreted statutory term “religion” very broadly. Otherwise, those who
embraced one religious faith rather than another would be subject to penalties, and that kind of discrimination would
violate the Free Exercise Clause and also result in a denial of equal protection by preferring some religions over others.
-Is the belief sincere and meaningful? Does it occupy a place parallel to that filled by the orthodox belief in God?
If yes to both prongs: “We cannot say that one belief is in relation to a Supreme Being and the other is not.”
Welsh v. United States [Religion] (1970): All that is required is a conscientious objection to participation in all wars.
Gillette v. United States (1971): Held that Congress could constitutionally refuse to exempt those who did not oppose all
wars but only particular conflicts because this rationale does not reflect a religious preference. [Holy Wars Exception]
The Limits of Judicial Inquiry into Religious Content
United States v. Ballard (1944): The First Amendment barred submission to the jury of “the truth or verity of
respondents’ religious doctrines of beliefs” though it did not bar submitting the question of whether the defendants
sincerely believed their representations. Same goes for religious property disputes. Presbyterian Church v. Hull Church.
The Free Exercise Clause (All Beliefs & Limited Acts)
1. Does an act of government deliberately disadvantage religion or a particular religion?
2. Are religious practitioners entitled to exemptions from generally applicable laws that conflict w dictates of their faith?
Religiously Discriminatory Laws
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Laws disfavoring religions or religious practices on their face are presumptively invalid unless justified by a compelling
interest and is narrowly tailored to advance that interest.
Torcaso v. Watkins(1961): Court struck down Maryland requirement that all holders of public office declare their belief
in the existence of god as a violation of the Free Exercise Clause (and Article VI Religious Test Clause on federal level).
McDaniel v. Paty (1978): Overturned provision disqualifying clergy from being legislators or convention delegates.
Facially Neutral Laws with a Religiously Discriminatory Purpose
If the object or intent of a law is to infringe upon or restrict practices because of their religious motivation, the law is not
neutral and is invalid unless justified by a compelling interest and is narrowly tailored to advance that interest.
Church of the Lukumi Babalu Aye v. City of Hialeah [Lukumi Case] (1993): Invalidated a city ordinance prohibiting the
ritual slaughter of animals, finding that the facially neutral law singled out practitioners of the Santeria faith for
discriminatory treatment and thus violated the Free Exercise Clause. Kennedy called the law a religious gerrymander.
The ordinances are overbroad (all Santeria sacrifices are illegal even if they complied with permitted standards)
and underinclusive (unlike religious killings, hunting, exterminations, and euthanasia are deemed “necessary.”)
Singling out Religion for Denial of Public Funding
Locke v. Davey (2004): Washington students may not use the Promise Scholarship at an institution where they are
pursuing a degree in devotional theology. The State has merely chosen not to fund a distinct category of instruction, no
animosity towards students, no historical or hostile text in restriction.
Note: Some public funding may, if a state chooses, be directed toward religious schools or other entities.
“There are some state actions permitted by the Establishment Clause but not required by the Free Exercise
Clause. The State could, consistent with the Establishment Clause, permit pursuit of a degree in theology.”
Freedom to Act is not an Absolute Right
Free exercise claims are commonly raised against facially neutral laws that have a disproportionately adverse impact on
religious practitioners. The free exercise claimant typically seeks exemption from, not invalidation, of the law.
Reynolds v. United States [No Human Sacrifice] (1878): Government actions may regulate religious practices.
Cantwell v. Connecticut [Rights are Relative] (1940): Religious conduct is subject to greater regulation than belief.
Prince v. Massachusetts (1944): Upheld law making it a crime for kids, including Jehovah’s, to sell newspapers.
Braunfeld v. Brown [Sunday Closing Law hurts Saturday sabbatarians] (1961): If the State regulates conduct by enacting
a general law within its power, the purpose and effect of which is to advance the State’s secular goals, the statute is
valid despite its indirect burden on religious observance unless less burdensome means are available.
Dissent: Administrative convenience does not justify making one religion economically disadvantageous.
Free Exercise Exemptions
Substantial Burden Standard
Sherbert v. Verner [Saturday sabbatarian unemployment benefits] (1963): A State cannot condition the availability of
unemployment insurance on an individual’s willingness to forgo conduct required by his religion. Dissent: The State
should not be constitutionally compelled to carve out an exception for religious convictions. Court applied strict scrutiny.
Under the Sherbert test, governmental actions that substantially burden a religious practice must be justified by a
compelling governmental interest (e.g., uniform tax laws, military and prisons, internal operations like SS & property).
This test was superseded by Smith (1990).
Denials of Free Exercise Exemption Claims
Tony & Susan Alamo Foundation v. Secretary of Labor (1985): Unsuccessful free exercise challenge to application of Fair
Labor Act’s minimum wage, overtime, and recordkeeping requirements for workers working for spiritual reasons.
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Lyng v. Northwest Indian Cemetery Protective Ass’n (1988): Unsuccessful free exercise challenge to build road and
harvest timber in national forest traditionally used by Indian tribes as sacred areas for religious rituals. The burden was
not sufficiently great to trigger any form of heightened scrutiny (analogy to Bowen social security case.) Dissent: Strict.
General Applicability Standard
Employment Division, Dept. of Human Resources v. Smith (1990): A number of States have made an exception to their
drug laws for sacramental peyote use but exemption is not constitutionally required. Dissent: Religious Freedom Act.
Facts involved dismissal for misconduct involving religiously inspired peyote use by Native Americans employed as
substance abuse counselors, but SCOTUS refused to inquire if denying Smith & Black unemployment benefits was a
substantial infringement on their First Amendment rights.
-Discarded Sherbert Standard
-Now if prohibiting or burdening the exercise of religion is not the object of the burden but merely the
incidental effect of a generally applicable and otherwise valid provision, there’s no 1st Amendment violation.
-Distinguishes Smith from Sherbert because Sherbert did not violate any law in refusing to work Saturdays.
-Oregon’s criminal law’s lack of an exception for sacramental peyote use is not required by the Free Exercise Clause.
-O’Connor’s concurrence would apply Sherbert anyway and examine whether the criminalization without exception
serves a compelling state interest (which she says it does).
Justice Scalia distinguishes HYBRID cases: The only decisions in which the First Amendment bars application of a neutral,
generally applicable law to religiously motivate action have involved not the Free Exercise Clause alone, but the free
exercise clause in conjunction with other constitutional protections, such as freedom of speech and of the press; or the
rights of parents to direct the education of their children (Yoder). Some of our cases prohibiting compelled expression,
decided exclusively upon free speech grounds, have also involved freedom of religion (Wooley; Barnette).
City of Boerne v. Flores (1997): Scalia: No judicial balancing for religious exemptions. Dissent: Free exercise to mandate
religious exemptions was both within the contemplation of the Framers and consistent with views about religious liberty
and limited government. Religious minorities are politically powerless and thus in need of judicial solicitude.
Religious Freedom Restoration Act (Invalidated by City of Boerne)
RFRA now furnishes no cause of action to state legislation, but may still bind federal actors.
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (2006): Hoasca, a hallucinogen brewed from Amazon
rainforest plants for sacramental use, mandates a federal exception just like peyote for Native Americans.
Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission [Ministerial
Exemption to Antidiscrimination Laws] (2012): Requiring a church to accept or retain an unwanted minister, or punishing
a church for failing to do so, infringes the Free Exercise Clause, which protects a religious group’s right to shape its own
faith and mission through its appointments. Because the teacher was a minister within the meaning of the exception,
the First Amendment requires dismissal of this employment discrimination suit against her religious employer.
ADA (law of general applicability) would generally permit action against employers for discrimination, but decisions to
hire ministers involve the internal governance of the church, ADA action would deprive the church of control over the
selection of those who will “personify its beliefs.”
Religious instruction teacher qualified as a minister with extensive religious training, examination, and certification as a
“called” teacher, and her “job duties reflected a role in conveying the Church’s message and carrying out its mission.”
The Establishment Clause
There are three ways to violate the establishment clause:
(1) Government has impermissibly sponsored religious imagery or symbols.
(2) Government is providing financial aid to religion.
(3) Government is “over-accommodating” religion (but what accommodation is necessary under the FE Clause?)
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Lemon Test: (1) The statute must have a secular legislative purpose; (2) Its primary effect must be on that neither
advances nor inhibits religion; (3) The statute must not foster “an excessive government entanglement with religion.”
Sectarian Classes
McCollum v. Board of Education: Struck down a school board’s practice of permitting students to attend sectarian
classes held in the public schools during school hours by parochial school instructors.
Zorach v. Clauson: Releasing children during school hours to attend sectarian classes outside the public school is okay.
School Prayer
PAGE 1322-1324 (Engle, Abington, Wallace)
Engle v. Vitale: Non-denomination, school prayer recited daily, individual students could opt out, found unconstitutional.
Support of government behind a particular religious belief creates “incorrect coercive pressure.”
Separatist Rationale: The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of
direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether
those laws operate directly to coerce nonobserving individuals or not.
Abington School Dist. v. Schempp (1963): Required reading of Biblical Verses daily.
Wallace v. Jaffree (1985): Moment of silence “for” meditation or prayer” at beginning of day (O’Connor: silence without
mentioning prayer is not an endorsement and could be permitted.)
Lee v. Weisman [Graduation Prayer] (1992): The Constitution guarantees that government may not coerce anyone to
support or participate in religion or its exercise. There are heightened concerns with protecting freedom of conscience
from subtle coercive pressure in the elementary and secondary public schools. The Constitution forbids the State to
exact religious conformity from a student as the price of attending her own high school graduation.
“What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious
practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of
the State to enforce a religious orthodoxy.”
Concurrence: Laws that coerce nonadherents to support or participate in religion or its exercise violates their right to
religious free exercise. Thus, a literal application of the coercion test would render the Establishment Clause a nullity.
Concurrence (Endorsement Test): The Establishment Clause proscribes public schools from conveying or attempting to
convey a message that religion or a particular religious belief is favored or preferred, even if the schools do not actually
impose pressure upon a student to participate in a religious activity. E.g., official prayers delivered to a captive audience.
Dissent: Students should respect this American tradition, dating back to the Nation’s origin, of a unifying voluntary
prayer ceremony with no threat of penalty. Speech is not coercive, even if officially directed at a captive audience.
Student-led prayer in Extracurricular School Settings
Santa Fe Independent School Dist. v. Doe (2000): Attendance is mandatory for football team members, cheerleaders,
and band members. Other students attend as part of a complete educational experience. Even if we regard every high
school student’s decision to attend a home football game as purely voluntary, the Court is nevertheless persuaded that
the delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religion.
Good News Club v. Milford Central School (2001): The Free Speech Clause protects the use of school facilities for
worship and prayer when led by a private evangelical Christian club as part of an extracurricular afterschool programs
because afterschool programs are not compulsory, there is a low risk of coercion, and no government endorsement.
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Stone: The Court held unconstitutional a Kentucky law that required the posting of a copy of the Ten Commandments,
purchased with private contributions, in public school classrooms because the primary purpose was religious.
Elk Grove: Reciting the Pledge is a patriotic, not a religious exercise, for the primary purpose of promising fidelity to our
flag and our Nation, not to any particular God, faith, or church.
Epperson: The State’s right to prescribe the curriculum for its schools does not include the right to bar the teaching of a
scientific theory (e.g., evolution) where that prohibition is based upon reasons that violate the 1st Amendment.
Edwards v. Aguillard (1987): The Creationism Act forbids the teaching of the theory of evolution in public schools unless
accompanied by instruction in creation science. Schools are not required to teach evolution or creationism, but if either
is taught, the other must also be taught. This violates EC because primary purpose is to advance religious doctrine.
While the Court is normally deferential to a State’s articulation of a secular purpose, it is required that the statement of
such a purpose be sincere and not a sham. Legislative history and language of the statute reveal a religious purpose.
Zelman v. Simmons-Harris (2002): The Pilot Project Scholarship Program provides aid for students to attend a
participating public or private school of their parent’s choosing. It has the valid secular purpose of providing education
assistance to poor children in a demonstrably failing public school system by providing a genuine and independent
choice for private individuals. Just because 46 of the 56 private schools now participating are religious does not make it
an endorsement of religious schooling in violation of the Establishment Clause.
Dissent: Applicability of the Establishment Clause to public funding settled in Everson: “No tax in any amount
can be levied to support any religious activities or institutions.” This is not a free choice for most families.
Freedom of Speech
The 1st Amendment provides: “Congress shall make no law abridging the freedom of speech, or of the press.”
Palko: Protection of speech is a fundamental liberty, an indispensable condition of nearly every other form of freedom.
Speech Coverage
Module 6: Theory, history/overview, categories of less protected speech
Module 7: speech vs. conduct, content based v. content neutral regulation, access to gov. operated spaces
Module 8: Associational rights, money and political campaigns
Prior restraint: Approval required by the government censor, e.g., printing press licensed by the Crown.
Cases: Debs, Whitney, and Gitlow convicted war protestors under early 20th century free speech jurisprudence.
Principle Values of Free Speech: Truth, Autonomy, Democracy
Brandeis Dissent in Whitney v. California
Role of free speech in self-government (middle, *liberal, conservative)
Meiklejohn: Speech on public issues of self-government should be immune from regulation—private speech less so.
Chaffee*: Private speech, such as art and literature, help electorate acquire intelligence and devotion to general welfare.
Bork: First Amendment protection should be constrained within “outer limits of free speech.”
Anti-Communism and Federal Smith Act Prosecutions
Dennis v. United States (1951): Existence of conspiracy creates a clear and present danger.
The Modern Incitement Test (Replaces Dennis and the Clear and Present Danger Test)
Brandenburg v. Ohio (1969) [KKK]: Speech can be prohibited if it is (1) “directed at inciting or producing imminent
lawless action” and (2) it is “likely to incite or produce such action.” Teaching & advocating without acting is okay.
NAACP v. Claiborne Hardware Co.: Mere advocacy of use of force or violence is protected speech.
Planned Parenthood v. Pro-lifers: Advocating violence is protected, threatening a person with violence is not.
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Fighting Words and Hostile Audiences
State Action REQ: The State has a substantial interest in assuring order and avoiding violence.
Fighting words occur in one-on-one, face-to-face encounters between individuals.
Hostile audience reactions occur between speakers and hostile audiences; courts’ concern about “heckler’s veto.”
Breach of the peace offense is committing acts or making statements likely to provoke violence and disturbance of good
order, even though no such eventuality may be intended.
Cantwell v. Connecticut [Victrola] (1940): The provocative language which has been held to amount to a breach of the
peace consisted of profane, indecent, or abusive remarks directed to the person of the hearer. Resort to epithets or
personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution.
Holding: A state may not unduly suppress free communication of views, religious or other, under the guise of
conserving desirable conditions. This case presented no clear and present danger to a substantial interest.
Chaplinsky v. New Hampshire [Racketeer Fascist] (1942): The conviction was based on Chaplinsky calling the Marshal a
god damned Fascist, an epithet likely to provoke the average person to retaliation, thereby causing breach of the peace.
Policy: Fighting words should not be protected because they are intended to inflict harm rather than ideas.
Counterargument (cop-contempt): There’s unequal punishment of racial minorities for talking back to police.
The right of free speech is not absolute at all times and under all circumstances. 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. These include the lewd and obscene, the profane, the libelous, and the insulting or fighting
words—those by which their very utterance inflict injury or tend to incite an immediate breach of the peace.
Chaplinsky defined fighting words as either those which by their very utterance inflict injury, or those which tend to
incite an immediate breach of the peace. The case also suggested that their suppression was justified by the social
interest in order and morality. Later cases have focused only on the breach of peace and order rationales.
Gooding v. Wilson (1972): White son of a bitch, I’ll kill you, choke you to death, cut you into pieces. Application limited
to words that have a direct tendency to cause acts of violence by the person to who, individually, the remark is
addressed. Later cases have also tended to limit fighting words to those directed face-to-face to an individual rather
than generally at a group.
Terminiello v. Chicago (1949): Snakes. Slimy snakes. Slimy scum.
Texas v. Johnson (1989): Burned an American flag. Direct personal insult or an invitiation to exchange fisticuffs.
Macho code of bathroom brawls? Flight rather than fight?
Street Harassment and the Informal Ghettoization of Women 106 Harv. L. Rev. 517, 575 (1993)
Cohen v. California [Fuck the Draft] (1971): Cohen was convicted by violating a California law which prohibits
“maliciously and willfully disturbing the peace or quiet of any neighborhood or person by offensive conduct.”
California held that offensive conduct means: ”behavior which has a tendency to provoke others to acts of violence or to
disturb the peace” such as hurting Cohen or forcibly removing his jacket.
Feiner v. Ney York [Lazy Bums operating Nazi Gestapo] (1951): Petitioner was convicted not for the making or content of
his speech but for the reaction which it actually engendered. Court upheld on the basis of interest of community in
preserving peach and order and protecting the general welfare on its streets. Dissent: Minority speakers are silenced.
Note: This case has not been overruled but subsequent cases are usually distinguished and do not follow it.
Street Demonstrations
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Edwards v. South Carolina (1963): State may not deny peaceful expression of unpopular views.
Cox v. Louisiana (1965): State may not convict peaceful civil rights demonstrators for drawing a hostile crowd.
Gregory v. Chicago (1969): Demonstrators may potentially be arrested for refusal to obey dispersal orders.
Permit Requirements (Content Discrimination)
Kunz v. New York (1951): The Court invalidated NY ordinance prohibiting public worship without a discretionary permit.
Forsyth County, Georgia v. Nationalist Movement (1992): A tax/fee based on the content of speech is not constitutional.
The Court condemns the permit system as involving impermissibly standardless discretion to censor certain viewpoints.
Hate Speech
“If we don’t believe in freedom of expression for people we despise, we don’t believe in it at all.” -Noam Chomsky.
National Socialist Party of America (NSPA) v. Skokie [Right to March Case] (1977):
Chicago & Skokie (village) required heavy insurance bonds (350k, 500k) against damages that marches might provoke.
Lengthy permit processes involving denials and appeals that delayed and prevented marches. Govt. sought injunctions
banning swastikas, Nazi uniforms, pamphlets that incite or promote hatred based on ancestry, race, religion. Local
ordinances requiring costly insurance, banning political parties from wearing military uniforms, prohibiting distribution
of materials that incite or promote hatred based on ancestry, race, or religion.
First amendment requires strict procedural safeguards, including immediate appellate review.
The display of the swastika cannot be enjoined under the fighting-words exception to free speech.
Anticipation of a hostile audience cannot justify a prior restraint.
It is the burden of citizens to avoid the offensive symbol if they can do so without unreasonable inconvenience.
Citing Cohen: In our pluralistic society, we are inescapably captive audiences for many purpose, much that we counter
offends our esthetic, if not our political and moral sensibilities. Nevertheless, the Constitution does not permit gov. to
decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling
listener or viewer. Rather, absent home intrusion or captive audience, the burden normally falls upon the viewer to
avoid further bombardment of her sensibilities by simply averting her eyes.
p845 discussion
R.A.V. v. City of St. Paul [Word to your Mother] (1992): Teenagers burn cross made from broken chair legs on lawn of
African American family. This conduct could have been charged under laws prohibiting arson, terroristic threats, or
criminal damage to property but were charged under the bias-motivated crime ordinance: “Whoever places on public or
private property a symbol which one knows arouses anger on the basis of race, color, creed, religion, or gender commits
disorderly conduct and shall be guilty of a misdemeanor.”
Overbreadth refers to a statute that proscribes lawful as well as unlawful conduct
The flaw in the wording of the ordinance was that it required the person who committed the hateful act to discern the
reaction of the victim to the perpetrator’s conduct. It is likely that hate crime ordinances that are worded to punish
conduct intended by the perpetrator to frighten, anger, etc. on the basis of race, religion, etc. would be upheld. For
example, Virginia v. Black held a state may ban cross burning carried out with the intent to intimidate.
Scalia Opinion
Content based regulations are presumptively invalid. Ordinance is facially invalid in that it prohibits otherwise
constitutionally protected speech on the basis of the subjects of the speech. Restrictions permitted upon the content of
speech in a few limited areas of such slight social value a step to truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and morality. These areas of speech can, consistently with the First
Amendment, be regulated because of their constitutionally proscribable content (incitement, fighting words,
defamation, obscenity, etc.) not that they are categories of speech entirely invisible to the Constitution, so that they
may be made the vehicles for content discrimination unrelated to their distinctively proscribable content.
Critique: This new “under-breadth” appears to relax the level of scrutiny applicable to content-based laws.
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Steven’s Concurrence
Context matters, and there are no absolute categories of protected speech, but rather a hierarchy: (1) Core political
speech; (2) commercial speech and nonobscene, sexually explicit speech; (3) obscenity and fighting words.
Wisconsin v. Mitchell [Sentence Enhancement] (1993): Sentence enhancement for bias motivated assault, i.e., conduct
based on “viewpoint” of the perpetrator. African American teens seriously injured white youth after viewing Mississippi
Burning. Their 2 year sentence was enhanced to 4 years. R.A.V. holding limited to laws limiting expression that made
distinctions between viewpoints even though such speech might not otherwise be protected. The effect of Mitchell was
to limit the holding of R.A.V. to viewpoint-selective laws aimed expressly at otherwise unprotected words or symbols.
-Motive traditionally relevant in criminal law
-Title VII, anti-discrimination laws make discriminatory motive unlawful
-Wisconsin statute aimed at conduct (despite the fact motive is usually proved by contemporaneous speech)
-Legislative belief that bias-inspired conduct inflicts greater individual and societal harm is adequate
Watts v. United States (1969):
Virginia v. Black (2003): It shall be unlawful for any person or persons, with the intent of intimidating any person or
group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place.
Any person who shall violate any provision of this section shall be guilty of a Class 6 Felony.
A state, consistent with the First Amendment, may ban cross burning carried out with the intent to intimidate.
The provision in the Virginia statute treating any cross burning as prima facie evidence of intent to intimidate renders
the statute unconstitutional.
Scalia Analysis: Viewpoint Discrimination
Prohibited: Heil Hitler
Not prohibited: I hate Nazis
If it makes a difference which viewpoint you support, then viewpoint discrimination is involved.
Surviving Criticisms in White’s concurrence about Vague Statutes
Inciting “anger” and “resentment” are not specific enough because they can capture protected speech.
CA education code 48900 is OK: Bullying is not allowed if it induces mental or physical harm to reasonable student.
Injury to Reputation and Sensibility (824-843)
Defamation and Emotional Distress
Defamation
Defamatory speech: category traditionally unprotected category by First Amendment
Libel is any defamation that can be seen, such as a writing, printing, effigy, movie, or statue
Slander is any defamation that is spoken and heard
Before New York Times v. Sullivan, defamation law was determinate on a common law state-by-state basis:
-Questions of First Amendment protection were generally irrelevant to defamation
-Defendants were held strictly liable even if they had no idea that the communication was false or defamatory,
or if they had exercised reasonable caution I ascertaining its truthfulness.
Kansas Criminal Defamation Statute: Any communication that is knowingly false made with actual malice tending to
expose another living person to public hatred, contempt, or ridicule. Truth is a defense to this misdemeanor.
Beauharnais v. Illinois [Group Libel] (1952): Illinois criminal group libel law prohibited the publishing, selling, or
exhibiting in any public place of any publication which “portrays depravity, criminality, unchastity, or lack of virtue of a
class of citizens, of any race, color, creed or religion, or which exposes the citizens to contempt, derision, or obloquy, or
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which is productive of breach of the peace or riots.” These are vague terms directed a large group, i.e., a class of citizens,
as opposed to an individual, and does not meet the Brandenburg incitement standard.
The Court has moved away from exposing a speaker to liability for the possible reaction of an audience.
Defamation Analysis
Public official, public figure, private individual
Issue of public concern or private concern
Media defendant vs. non-media defendant
Libel
State action occurs when the court enforces an injunction or damages.
NY Times v. Sullivan (1964): The NY law for libel per se “tends to injure reputation” and presumed general damages.
SCOTUS held that a public official suing for defamation must prove that the statement in question was made recklessly
or with actual malice, which in this context refers to knowledge because only a malicious person would knowingly
publish a falsehood. The rule that somebody alleging defamation should have to prove untruth, rather than that the
defendant should have to prove the truth of a statement, stood as a departure from the previous common law.
The state cannot circumvent criminal law by utilizing libel (with no double jeopardy!) to punish political speech.
This anti-censorship approach eradicates chilling effect on publisher and speakers’ protected political criticisms.
NY Times v. Sullivan RECAP
-State action through tort liability for speech
-Political advertisement entitled to First Amendment Protection
-Neither falsity or reputational harm automatically deprive speech of protection
-A public official in a defamation action relating to official conduct must prove falsity with convincing clarity and must
prove that the defendant published the defamatory falsehood with malice: actual knowledge or reckless disregard.
Sullivan components
-Broad definitions of public official and official conduct
-Reckless disregard standard: plaintiff must show the defendant in fact “entertained serious doubts” about the truth of a
statement or that there were “obvious reasons to doubt the veracity” of the source or the accuracy of his report.
Milkovich v. Lorain Journal Co. (1990):
Herbert v. Lando (1979):
Public Figures
Curtis Publishing Co. v. Butts/Associated Press v. Walker: “Public figures” are prominent public persons who have access
to media and play influential roles in society. The Court extended the NY Times’ actual malice standard to public figures
(i.e., knowledge of falsity or reckless disregard of whether a statement is true or false on the part of the news media).
Public figures have less protection in defamation than private individuals because they have media access.
Time, Inc. v. Firestone (1976): Divorced wife of a prominent industrialist did not “thrust herself” into public affairs, the
divorce did not involve issue of public controversy.
Hutchinson v. Proxmire (1979):
Private Figures
Rosenbloom v. Metromedia, Inc. (1971):
Gertz v. Robert Welch, Inc. (1974): A person who “voluntarily injects himself or is drawn into a particular public
controversy” becomes a public figure “for a limited range of issues.” The Court also held that there are persons who
“occupy positions of such persuasive power and influence that they are deemed public figures for all purposes.” This
category would include, for example, a national labor or leader.
Defamation of private individuals by media defendants is not subject to NY Times v. Sullivan actual malice standard.
-Private individuals do not have to prove actual malice (negligence can suffice)
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-States cannot impose strict liability for defamation (i.e., libel per se)
-Private plaintiffs can recover out of pocket losses demonstrated injury to reputation, mental anguish
-States can only permit recovery of presumed or punitive damages if plaintiff establishes actual malice
Speech on Matters of Private Concern
Dun & Bradstreet, Inc. v. Greenmoss Builders (1985): Upheld award of punitive damages without establishing malice
against D&B for credit report that erroneously reported bankruptcy, finding no matter of public concern was involved,
limited dissemination meant the case did not involve “the free flow of commercial information.” Plurality (3 justices)
applied private concern/non-media analysis to uphold the VSC decision.
Intentional Infliction of Emotional Distress
Hustler Magazine v. Falwell (1988): Refused to allow liability for IIED when offensive parody about public figure (Falwell)
could not have been reasonably been interpreted as stating actual facts about the plaintiff. Even though bad motivation
can impose liability in other areas of the law, 1st Amendment protects the speech in public debate about public figures.
Invasion of Privacy
False Light Invasion of Privacy
Time, Inc. v. Hill (1967):
Disclosure of Rape Victims’ Names
Cox Broadcasting Corp. v. Cohn (1975):
Florida Star v. B.J.F. (1989):
Privacy and Electronic Eavesdropping
Bartnicki v. Vopper (2001):
Appropriation Torts
Zacchini v. Scripps-Howard Broadcasting Co. (1977):
Supp 36 -41
Obscenity
Obscenity: traditionally unprotected category—“such slight social value as a step to truth that any benefit that might be
derived from it is outweighed by the social interest in order and morality.” (Concept of social value still applied today.)
Pre-Miller Obscenity Standards
Roth (1957): Material that deals with sex in a manner appealing to prurient interests.
Jacobellis v. Ohio (1964): Justice Stewart: “I know it when I see it.”
Memoirs v. Massachusetts (1966): (1) Material, taken as a whole, appeals to a prurient interest in sex; (2) patently
offensive in that it affronts contemporary community standards relating to the description of sexual matters; (3)
material is utterly without redeeming social value.
Miller Obscenity Standard (Obscenity is juror’s community standards; Social value is overridden by national standard)
(a) Whether the average person would find that the work, taken as a whole, appeals to the prurient interest;
(b) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the law;
(c) Whether the work taken as a whole lacks serious literary, artistic, political, or scientific value.
Expert testimony may be used to provide a national standard, e.g., this saved an art gallery and 2 Live Crew.
Paris Adult Theatre v. Slaton [Times Square] (1973): States can regulate obscenity even for consenting adult consumers
in places of public accommodation, including adult theaters excluding minors. Legitimate state interests include public
interest in quality of life, totally community environment, tone of commerce in city centers, and possibly public safety.
Dissent: Should be protected content when no distribution to juveniles and no exposure to unconsenting adults.
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New York v. Ferber (1982): Child pornography becomes the only new category of constitutionally unprotected speech
since Chaplinsky (fighting words). Rationale: Banning possession eradicates the economic motive to harm children.
Ashcroft v. Free Speech Coalition [American Beauty](2002): Not extended to virtual/imitation pornography.
Regulating Content through Land-Use Restrictions (Erogenous Zoning)
Zoning ordinances based on secondary effects rebut presumption that content-based restrictions are unconstitutional.
Narrowly drawn zoning ordinances may be used to restrict the location of adult theaters if the purpose of the regulation
is to reduce the impact on the neighborhood of such establishments, but they may not be used to ban them altogether.
Young v. American Mini Theaters [Anti-Skid Row] (1976): Ordinances that do not ban adult theaters altogether but
restrict location were described as “time, place, or manner” regulations, even though the ordinance applied to private
properties. Such ordinances were deemed “content neutral” even though they treated theaters that showed adult films
differently from those that did not because the ordinances were aimed at the secondary effects of such theaters on the
surrounding community and were thus justified without reference to the content. Scrutiny: The ordinance must be
designed to serve a substantial governmental interest and allow for reasonable alternative avenues of communication.
Renton v. Playtime Theaters [Pro-Skid Row] (1986): Concentrating theaters is OK b/c predominant intent not to
suppress content, but rather to prevent secondary effects like crime, protect property values and quality of life.
FCC v. Pacifica: In this case it is undisputed that the content of Pacifica’s broadcast was “vulgar, offensive, and shocking”
content of that character is not entitled to absolute constitutional protection under all circumstances. Concurrence
rejects content analysis, result based on the unique characteristics of the broadcast media (i.e., invasion of the home
and exposure to children.) FCC may punish broadcast under a nuisance rationale. Nuisance variables include: (1) the
time of day; (2) the content of the program in which the language is used (likely composition of the audience); (3) form
of media used (radio, TV, cable).
Sable Communications v. FCC: Criminal prohibition of telephone messages that were either obscene or indecent found
unconstitutional “sexual expression which is indecent but not obscene is protected by the First Amendment.” Although
FCC’s interest in protecting children is still valid, the prohibition was “insufficiently narrowly tailored.”
Application of Strict Scrutiny to Indecency Regulation of Cable Television
U.S. v. Playboy: FCC required scrambling or late-night broadcast, if signal bleed could occur. Court for the first time
struck down a law that regulated indecency on a non-broadcast medium that fell short of a total ban. When a plausible,
less restrictive alternative is offered to a content-based speech restriction, it is the Government’s obligation to prove
that the alternative will be ineffective in achieving its goals.
Online Indecency
Why is regulation of the internet different from the regulation of broadcast media? In what ways is the CDA overbroad;
what protected communications are prohibited?
Reno v. ACLU (1997): The Communications Decency Act was an attempt to protect minors from explicit material on the
Internet by criminalizing the knowing transmission of "obscene or indecent" messages to any recipient under 18.
Ashcroft v. ACLU: Child Online Protection Act (COPA) prohibited making any communication for commercial purposes
that is available to any minor that includes obscene material harmful to minors. The Court upheld the preliminary
injunction blocking COPA’s implementation. Plaintiffs were likely to prevail on issue of unconstitutionality due to the
availability of numerous plausible, less restrictive, more effective alternatives such as blocking software.
Categories of Less Protection Speech: Commercial Speech
Speech that merely proposes a commercial transaction. Entitled somewhat less 1st Amendment protection than noncategorical speech.
Central Hudson 4 part test: (1) to be protected commercial speech must concern lawful activities and not be misleading.
(2) Substantial government interest in regulating the speech/activity that is the subject of the speech. (3) The regulation
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of the speech must directly advance the substantial government interest to a material degree (Edenfield v. Fane). (4) A
reasonable fit between means and ends the restriction must be no more extensive than necessary to further the state’s
interest but not necessarily the least restrictive means (Fox).
Evolving Categorical Analysis: Incitement, fighting words, defamation, obscenity, indecency, commercial speech
Only child pornography that uses images of actual children is completely unprotected
Police v. Mosley [Solitary Student Picket] (1972): Gov. must afford all points of view an equal opportunity to be heard.
This was not a time, place, and manner regulation, as it defined the prohibited speech in terms of subject matter.
United States v. O’Brien [Burned Draft Card in Protest] (1968): O’Brien violated a federal statute prohibiting the knowing
destruction or mutilation of a draft certificate. The narrow construction of the statute indicates it was not intended to
suppress communication (i.e., anti-war sentiment) but rather for bureaucratic convenience. O’Brien says the application
is unconstitutional. Court says regulating the nonspeech element can justify incidental limitations of speech freedoms.
(1) Does the government have the power to regulate the field?
(2) Does the regulation advance an important or substantial interest?
(3) Is the interest unrelated to the suppression of speech?
(4) Is the incidental burden no greater than necessary to achieve the interest?
Texas v. Johnson: Unconstitutional prohibition (intentional offensive desecretation of venerated object, national flag).
R.A.V.: Statutes restricting speech based on the response of the audience are void for vagueness. Here, viewpoint is also
restricted, content-based regulations are subject to strict scrutiny. Preserving the flag is not a compelling gov. interest.
Regulation of Speech in Public Forums and Other Government Property
Where are ideas/issues traditionally debated and discussed?
Where does the public make its views known to the government?
Hague v. CIO [1st Amendment Easement] (1939): Public forums are used for assembly, communicating thoughts
between citizens, and discussing public questions. Such uses are a part of the privileges, immunities, rights and liberties
of the citizens. The privilege to use the streets and parks for communication may be regulated but may not denied.
Cox v. Louisiana: Liberty implies maintaining public order, without which liberty would be lost in anarchy.
Typical government interests: public order, quiet, traffic control, adverse audience reactions, aesthetics.
Time, Place, and Manner Test
Cox v. New Hampshire (1941): Content-neutral license fee for cost of policing NOT based on anticipated hostility is OK.
Schneider v. State [Leaflet] (1939): Flat ban on person rightfully on street handing literature to willing recipients not OK.
Was the regulation content based or content neutral? Content neutral—no leaflets. Intermediate scrutiny.
What were the state’s interests… were they sufficiently substantial? Keeping streets clean legit, not substantial.
What was problematic about the means chosen to achieve this interest? Antilitter laws less restrictive means.
Martin v. Struthers (1943): The outright prohibition of distributing handbills to residences by ringing doorbells is not OK.
Was the regulation content based or content neutral? Content neutral—purpose for ringing bell was irrelevant.
What were the state’s interests… were they sufficiently substantial? Total ban is too strict for health & privacy.
What was problematic about the means chosen to achieve this interest? No solicitor signs are less restrictive.
Standardless Licensing
Saia . New York: Invalidated prohibition on use of loudspeaker without permission from police chief as a prior restraint.
Contra: Kovacs v. Cooper: Upheld ban on use of sound trucks that emit “loud and raucous noises.” Manner reg is OK.
Complete bans are usually not sufficiently substantial. Partial bans usually permissible time, place, manner regs.
Aesthetic Regulation
City of Ladue v. Gilleo: Most signs prohibited to minimize visual clutter.
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Content based or content neutral? The limited exemptions were making distinctions based on content.
Why did the court reject city’s time, place, manner argument? Even if content neutral, it banned too much.
What factors did the Court find particularly problematic? Individual liberty in the home and political debate.
Metromedia v. San Diego: Billboard regulations, including a ban on noncommercial billboards, are content based.
Are aesthetic concerns sufficiently compelling? Sufficient for a content neutral ban, but not compelling here.
Members of City Council v. Taxpayers for Vincent (1984): Ban on posting signs on public property to protect appearance.
Was the regulation content based or content neutral? Content neutral flat ban on posting signs on utility polls.
What were the state’s interests… were they sufficiently substantial? Yes, litter is legitimate state interest.
Did the regulation prohibit all posting of signs? Significance? Signs allowed on private property; alt. means.
Public property which is not by tradition or designation a forum for public communication may be reserved by the state
for its intended purposes… regulation must be reasonable and not due to an official’s opposition to the speaker’s views.
Clark v. Community for Creative Non-Violence: Regulation forbidding sleeping in symbolic tent-cities in Lafayette Park
and National Mall were limitations on the manner in which the demonstrations could be carried out, even if sleeping
was for expressive purposes. Gov. had legit interest in protecting parks by prohibiting sleeping. Reasonable time, place,
and manner regulations normally have the purpose and direct effect of limiting expression but are nonetheless valid.
-Content-neutral and not applied because of disagreement with the message presented
-Narrowly focused on the government’s substantial interest in maintaining the parks in the nation’s capital
readily available to visitors (Note: content-neutral statute does NOT have to be the least restrictive alternative)
-The message regarding the plight of the homeless could be communicated in other ways (e.g. media coverage)
Time, place, and manner test is the same as the O’Brien expressive conduct test
-Park Service Camping regulation is within the constitutional power of the government to enforce (e.g. public order)
-Substantial governmental interest in conserving park property
-The interest is clearly served by the proscription of sleeping
-The sleeping ban is unrelated to the suppression of expression
Libraries, Jails, and Schools (Compatibility Approach)
Brown v. Louisiana: Brown & companions arrested for breach of peace for not leaving segregated library when asked.
Rights of speech, assembly and freedom to petition the government through silent, reproachful protest... no disturbance
of other people’s library use by the demonstration… breach of peace statute as applied in this case was unconstitutional
because it encompassed reasonable, orderly, and limited right to protest unconstitutional segregation.
Adderley v. Florida: Upheld convictions for malicious trespass; protestors outside jail in driveway used for transporting
prisoners. Court found no content or viewpoint discrimination. The state, like a private property owner, has the power
to preserve the property under its control for the use to which it is lawfully dedicated.
Grayned v. Rockford: Ordinance barring school demonstrations that disturb the peace and order of a school session. The
nature of a place and pattern of its normal activities determine the reasonableness of time, place, & manner restrictions.
Is the manner of expression basically incompatible with the normal activity of a particular place at given time?
Traditional public forums, designated public forums, non-traditional public forums (non-public forums)
Designated Public Forums (DSP)
DSP: Public property that the state has opened up for use for expressive activity… although a state is not required to
indefinitely retain the open character of the facility, as long as it does so regulations must be:
-Reasonable TP&M regulations; content neutral, narrowly tailored to serve a significant government interest.
-If content based, restrictions must be necessary to achieve a compelling state interest and narrowly tailored.
Nonpublic forums
Public property which is not by tradition or designation a forum for public communication
In addition to time, place, and manner regulations, the state may reserve the forum for its intended purpose,
communicative or otherwise, as long as the regulation on speech is (1) reasonable; and (2) viewpoint neutral.
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Perry Education Association (PEA v. PLEA): Although schools allow some outside organizations such as the YMCA, Cub
Scouts, and other civic and church organizations to use the mailboxes facilities. This type of selective access does not
transform government property into a public forum; any right of access would in any event extend only to other entities
of similar character. If the access policy adopted y the Perry schools favored a particular viewpoint it would be strictly
scrutinized regardless of whether a public forum is involved. No requirement that school policy be content neutral.
The access policy as based on the status of the respective unions rather than their views. Implicit in the concept of the
nonpublic forum is the right to make distinctions in access on the basis of SUBJECT MATTER and SPEAKER IDENTITY.
Christian Legal Society (CLS): The Hastings policy requiring student groups to accept all students regardless of status or
beliefs in order to obtain official recognition is a reasonable, viewpoint-neutral condition on access to the limited forum.
Overbreadth (Protecting unprotected speech to preserve protected speech)
The concept of overbreadth is about capturing protected speech. By prohibiting protected speech, a law can be found
unconstitutional even If the specific speech that is the subject of litigation is not protected.
(1) The invalidation of a law “on its face” rather than “as applied” makes the law wholly unenforceable until a
legislature rewrites it or a properly authorized court construes it more narrowly (e.g., severs invalid portions).
(2) Despite the usual rules of standing, challengers are in effect permitted to raise the rights of third parties.
If the facts just involve speech, then the Court is more likely to apply de minimis overbreadth analysis.
If the regulation is aimed at expressive conduct, then the Court will probably apply the substantial standard.
Vagueness
In general, a statute might be called void for vagueness reasons when an average citizen cannot determine what persons
are regulated, what conduct is prohibited, or what punishment may be imposed. A statute is also void for vagueness if a
legislature's delegation of authority to judges/administrators is so extensive that it would lead to arbitrary prosecutions.
Prior Restraint
Prior restraints are disfavored because they chill protected speech and individual autonomy based on speculation.
Injunctions
Citizens United v. FEC [Hillary The Movie]: A PAC is a separate association from a corporation, despite having access to a
corporation’s immense aggregations of wealth to represent the corporation’s political ideology. The federal government
may not prohibit direct corporate and union spending on advertising for candidates’ elections. Laws that bar those
interests from contributing directly to candidates remain in place. [The CU holding has been applied to the states.}
The Court’s concerns include: Quid pro quo (favors in return for contributions), indirect expenditures,
association of speakers, protecting minority shareholders, ingratiation, distorting effects, disfavored speakers.
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