CON LAW II OUTLINE
Text, Theory, and History of the First Amendment
 Text: “Congress shall make no law…abridging the freedom of speech or of the press”
o Seems to only be a restriction on Congress
o Applies to executive branch & judicial branch; Congress is seen as a shorthand for the federal
gov’t
o Not until 1925 did it become applicable to the States in the 14th Amendment.
 What is NOT protected by the 1st Amendment?  Things that will expose you to criminal or civil
liability
o Examples: conspiracy, falsely shout fire in a crowded building, fraud, sexual harassment,
defamation, graffiti, fighting words, blackmail, contempt of court, giving secrets to the enemy,
perjury, inciting a riot, threats, obscenity/dirty words on the radio, trade secrets (from employer
and sell to other company), confidential client information, intellectual property (copyright),
solicitation of a crime, extortion, certain types of child abuse, oral contract, antitrust/price fixing
agreements, forgery, professional malpractice
 America protects free speech more than other countries. Why?
o Allows criticism of gov’t
o Part of democratic gov’t
o Protects liberty in general
o Promotes pluralism & transparency
o Part of being human
o Opportunity to redress wrongs
o Marketplace of ideas
o Alternative is terrible
 Theories in protecting freedom of speech?
o Instrumental Theory: values free speech as a way to accomplish something else (ex. Practice of
religion, political debate or some other value)
 Market place of ideas (Holmes): freedom of speech makes it easier to get ideas into the
“marketplace” and if they are not valid ideas they will not be subscribed to but it is not
the government’s role to restrict their entry (unless there is a valid reason)
o Non-Instrumental Theory: speech is a value in & of itself even if it doesn’t lead to anything
else (ex: self-expression)
o Note: there is no overriding theory that explains everything
I. HISTORY
England Restrictions on Free Speech
 1) Constructive treason: people imprisoned for saying bad things about the gov’t – relatively uncommon
o “compassing or imagining the King’s death”
o Could only be proven by overt acts (spoken or printed words counted as overt acts)
 2) Seditious Libel (far more important): bringing the gov’t or officials in the gov’t to disrepute
o jury decided whether the defendant published the item; judge decided whether it was libel
o truth was not a defense
o this disappeared in England by the Libel Act
 3) Printing monopolies & licenses: you had to get license from the gov’t to get a printing press
o largely ended by the 17th century
o as power shifted from the crown to parliament, got rid of licenses but still suppressed speech w/
taxes on magazines, pamphlets, & newspapers
 English Bill of Rights 1698
o Parliament gets free speech; no on else did
 1734 New York  Zinger case
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o Facts: Publisher accused of seditious libel; Hamilton was his lawyer
o Holding: Truth is a defense to libel
Blackstone Commentaries (1769)
o “The liberty of the press is indeed essential to the nature of a free state; but this consists in laying
no previous restraints upon publication & not from freedom from censure for criminal matter
when published”
o No pre-publication censure for the press
Original Constitution 1787: no mention of free speech except for members of Congress
 Finally get 1st amendment – but this is the first amendment purely by accident (doesn’t mean it’s first in
importance in the framers’ minds)
Sedition Act of 1798 (passed by John Adams; only in effect until 1801)
 (1) Prohibited any “false, scandalous, or malicious writing against the gov’t of the United States”;
 (2) Gov’t must prove malicious intent;
 (3) Truth is a defense;
 (4) Jury can decide whether the writing had a seditious effect
Patterson v. Colorado (1907)
 Holmes: freedom of the press means only freedom from prior restraint not freedom from prior restraint
not freedom from punishment after the fact.
 Court said that the 1st Amendment means exactly what Blackstone says – no prior restraints but if
speech has a bad tendency it can be punished after it is printed/spoken
II. UNPROTECTED & LESSER PROTECTED CATEGORIES OF SPEECH
Overview of Speech Protection
 Unprotected categories of speech:
o Brandenburg incitement
o Libel
o Miller obscenity/Ferber child porn
o Fighting words
o Commercial speech/Central Hudson
 If speech doesn’t fall under one of the above categories, can move to the following tests:
o Strict Scrutiny: Laws restricting speech, including time, place & manner restrictions on the basis
of content must be narrowly tailored to achieve a compelling gov’tl interest
o Intermediate Scrutiny: content neutral time, place & manner restrictions must serve a substantial
gov’t interest & lease open reasonable alternative channels of communication
Speech that Incites Unlawful or Violent Conduct
 Background
 World War I
o 1914: Franz Ferdinand assassinated; President Woodrow Wilson declines to enter the war
o 1917: US enters the war at behest of Wilson; Reasoning: German submarines disrupting
commerce & interception of Zimmerman telegram (saying Mexico should attack US)
 Anti-German sentiment spreads thru US
o 1917: Russian Revolution led by Lenin; Monarchy destroyed; communist gov’t takes over
 Russia withdraws from war
o Hysteria in US over Communism & Germans
 Feared that there would be an overthrow of gov’t
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Immigration Act of 1903: provided persons who believed in or advocated for the overthrow of gov’t by
force & violence should be barred from entering the country
Espionage Act of 1917: “Whoever, when the US is at war, shall willfully cause or attempt to cause
insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the US or
shall willfully obstruct the recruiting or enlistment service of the US…shall be punished by a fine of not
more than $10,000 or imprisonment for not more than 20 years or both…”
Sedition Act of 1918: “Whoever, when the US is at war, shall willfully utter, print, write or publish
any disloyal, profane, scurrilous or abusive language about the form of gov’t of the US or the
Constitution of the US or the military or naval forces of the US…or any language intended to bring the
form of gov’t of the US…into contempt, scorn, contumely or disrepute…shall be punished by a fine
of not more than $10,000 or imprisonment for not more than 20 years or both”
o Viewed as the most repressive law in American history
o Many states had similar laws: 33 made it a crime to possess communist flags
Masses v. Patten (1917)
o Facts: the publisher of a revolutionary journal called “The Masses” brought suit to enjoin the
postmaster of NY from refusing to accept the magazine in the mails. Postmaster thinks cartoons
in magazine violate the Espionage Act & therefore it is unmailable & refuses to mail it.
 The Masses criticized the war through cartoons – one of them showed a shattered liberty
bell
o Holding: DC rules in favor of the magazine – the espionage act by its terms & language
doesn’t apply to this publication  have to construe the language of the act narrowly
o Political agitation is part of free speech
 But Direct advocacy of unlawful action not allowed & is prohibited under the Espionage
Act
 Bright line rule
o Congress meant only to prohibit direct resistance & the cartoons don’t come close to that
standard
o Doesn’t say the espionage act doesn’t violate the 1st Amendment – it just doesn’t apply to this
cartoon
o Note: First federal court opinion to recognize some semblance of free speech & provide the
framework for how we should approach it
o Appealed to the 2nd Circuit (Hand): anything that has a bad tendency is not allowed under the act
& that this doesn’t violate the 1st amendment – apply Blackstone
 Found that it did have poor content & was not allowed
INITIAL CLEAR & PRESENT DANGER TEST
 Schenck v. US (1919)
o Facts: Schenck & other Ds were indicted & convicted of a conspiracy to violate section 3 of the
Espionage Act of 1917. Sent circulars directly to those who received draft cards calculated to
cause insubordination in the armed services & to obstruct the recruiting & enlistment service.
The circulars stated things such as “write to your congressman & demand that he repeals the
Conscription Act”; “Do not submit to intimidation”
o Holmes Majority: Free speech protections are NOT absolute  circulars not protected, upheld
convictions
 “The most stringent protection of free speech would not protect a man from falsely
shouting fire in a theatre & causing panic”
 Larson’s 3 differences between fire & the circulation
 1) Immediacy: for the fire there is no time for a discussion & debate – the evil
you seek to prevent is far more immediate in the fire case
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2) Circulation is an opinion: yelling fire is a false statement of fact
3) In the theater case you are speaking to a captive audience – they have no
choice to listen to if – if you get a circulation in the mail you can just throw it
away
o Rule: Congress can restrict speech that has a “clear & present danger”
 “The question in every case is whether the words are used in such circumstances
and are of such a nature as to create a clear and present danger that they will bring
about the substantive evils that Congress has a right to prevent. It is a question of
proximity and degree.”
o Hand: the notion that the 1st amendment is only about prior restraints effectively dies in this case.

Abrams v. United States (1919)
o Facts: Abrams indicted & convicted of conspiring to violate the provisions of the 1918
Amendment to the Espionage Act, in that they printed & distributed 5,000 circulars in NYC
which were intended to bring the form of gov’t of the US into contempt; to encourage resistance
to the US in WWI; & to incite curtailment of war production.
o Holmes Dissent: the expression of opinions should be checked only if they so imminently
threat that an immediate check is required to save the country. (do not cite majority
opinion)
 The leaflets in this case are “silly” and there is no reason for anybody to be frightened of
them
o Difference between Abrams & Schenck: Schenck the circulars were sent directly to the list of
men vs being thrown out the window
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Sedition Act repealed in 1920 & everyone who was convicted under this act were released
REASONABLENESS & DEFERENCE TO STATE LEGISLATURES
 Gitlow v. NY (1925)
o Facts: NY criminal anarchy statute says you can’t advocate the overthrow of the gov’t by force
or violence. Gitlow published the Left Wing Manifesto advocating overthrow & was punished
under the statute. Issue: Whether a statute that penalizes the mere utterance of violent overthrow
without reference to the circumstances or likelihood violates the 1st Amend.
o Majority: Free press/free speech applies to the states
 Freedom of speech & of the press – which are protected by the 1st Amendment from
abridgment by Congress – are among the fundamental personal rights & “liberties”
protected by the due process clause of the 14th Amendment from impairment by the
States
 Court says here, the writing advocated not just abstract ideas but action
 Clear & present danger applies only to statutes about conduct; Espionage Act was about
conduct
 Here, it is a speech statute & not a conduct statute
 Legislature already found that this speech constitutes a clear & present danger &
the court defers to their judgment
 It is enough that the speech falls into this category
 Spark example: State is allowed to extinguish the spark before it blazes into a fire
 Incitement: Whether the speech actually results in the target evil is inconsequential
o Dissent: Holmes & Brandeis D
 Schenck controls  should use clear & present danger standard
 “Every idea is an incitement”
 this wasn’t going to make a fire so no danger?
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Whitney v. CA (1927) (OVERRULED)
o Facts: Arose under the CA criminal syndicalism act that defined “criminal syndicalism” as any
doctrine advocating, teaching, or abetting sabotage or other unlawful acts of violence as a means
of accomplishing industrial or political change.” Whitney was a member of the new Communist
Labor Party. Opposed resolution that advocated violence but was still part of the group.
o Majority: Upheld conviction  Communist party threatened public safety
o Brandeis Concurrence (BIG PART)* (one of the most cited in free speech cases)
o Brandeis Test: Under the clear and present danger test there must be reasonable ground to
fear that the danger apprehended is imminent and that the evil to be protected is a serious
one.
 Must be an imminent, serious evil for speech to be restricted
 The fact that speech is likely to result in the destruction of some property is not enough,
there must be the probability of serious injury to the state
 He says the people who won freedom of speech were not cowards. They believed that
people should have the freedom to think as you will & speak what you think (free market
place of ideas)
 Remedy for bad speech is not to enforce silence, but to counter the bad speech w/
good speech
o Conviction upheld because 1st amendment argument was not raised in trial court
CONVICTIONS OVERTURNED THROUGH REASONABLENESS APPROACH
 DeJonge v. Oregon (1937)
o Meeting did not engage in unlawful activity
o Can’t be punished for what others did elsewhere
o Rule: peaceful assembly for matters of discussion cannot be penalized
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Smith Act (1940): federal equivalent to Criminal Syndicalism
o Widely used to prosecute communists; widely popular after WWII
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Notes: The Clear and Present Danger Test ALWAYS applies with the gov’t attempts to suppress speech.
Holmes’ dissent in Gitlow is not good law. Clear & Present Danger test is a balancing test that considers
the degree of harm multiplied by the probability of the harm. Imminence of the danger is no longer
required.
THE RISK FORMULA
 Dennis v. US (1951)
o Facts: leaders of the Communist Party prosecuted under the Smith Act for organizing the
Communist Party & advocating the teaching of overthrowing the US by violence – conspiracy to
advocate to over the US gov’t
o SC affirms the conviction w/ a plurality opinion
o Plurality Opinion: the clear & present danger test applies to ANY statute that restricts
speech – not just those that are pointed towards conduct
 Defendants here still lose
 Dennis Plurality Test: degree of harm multiplied by probability
 Here, there is a high degree of harm and a high degree of probability because the
overthrow of the gov’t by the Communist was probably the biggest threat
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Probability was high bc this was a highly organized conspiracy w/ disciplined
members
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Yates v. US (6 years after Dennis)
o Essentially the exact same charges as Dennis – these are just lower level people in the
Communist party
o Court: reverses the convictions & says the Smith Act does not prohibit advocacy and teaching of
overthrow as an abstract principle, but the speaker must have urged listeners to do something,
not just to believe something
o Court half-heartedly distinguishing Dennis
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Scales v. United States
o Present advocacy of future action by the Communist party is the same as advocacy of immediate
action
o While mere membership in a group is not sufficient to present a C&PD, CAN punish
individuals for group membership under the Clear & Present Danger test IF (1) there was
active membership, & (2) knowledge of the group’s illegal purposes
BRANDENBUG TEST
 Brandenburg v. Ohio
o Facts: leader of KKK clan in Ohio. Described a potential march on Congress & marches in
Florida/Mississippi. Prosecuted under Ohio Criminal Syndicalism statute
o Held: Ohio Criminal Syndicalism Statute is facially unconstitutional
o Rule: A state may not “forbid or proscribe advocacy of the use of force or of law violation
except where such advocacy is:
 (1) directed to inciting or producing imminent lawless action and
 (2) is likely to incite or produce such action”
o Note: this is the most stringent test the court has created in this area
o View of the majority of scholars is that the clear & present danger test is dead and is totally
replaced by Brandenburg
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In-Class Hypos:
o What if someone completes an act and someone does a copycat act? (seeing a movie of a crime
& then imitating the movie). Could the gov’t suppress really violent movies to prevent the
copycat crimes?
 Answer: No, because when someone creates a movie, they aren’t trying to incite
imminent lawless action. Need intent.
o Teenager who texted her boyfriend into committing suicide
 Probably can be prohibited under Brandenburg.
 Passes 1st prong if we assume suicide is lawless
 The second prong is likely satisfied because the guy was vulnerable & much more likely
to be responsive to these texts. Also came from gf, not a random person.
o Animal rights activist bombed the home of the scientist at UCSC because of the person’s
research w/ animal rights. CA legislature passed statute making it a crime to post personal
information about animal researchers on the web – including information about where they live,
with intent that another person imminently uses the information to commit a crime involving
violence or a threat of violence against an academic researcher or his or her immediate family
member, etc.
 Answer: This would satisfy Brandenburg
o Hitman Book (Rice v. Paladin Enterprises)
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Court held that this book has no 1st Amendment protection
 Book was intended to be used for murder, had no redeeming social value
whatsoever other than a specific guide to commit murder.
 Case technically doesn’t pass Brandenburg – it provides info that makes it easier for
somebody who already has the inclination to commit a crime, to do it.
 No SC case law dealing w/ this problem
o Can providing information be made a crime? If so, what are the criteria for allowing
punishment?
 Eugene Volokh, Crime-Facilitating Speech, 57 Stan. L. Rev. 1095 (2005)
 Should be prohibited only when: (1) it’s said to a person or a small group of
people when the speaker knows these few listeners are likely to use the
information for criminal purposes; (2) it’s w/in one of the few classes of speech
that has almost no noncriminal value; or 3) it can cause extraordinarily serious
harm (on the order of a nuclear attack or a plague)
III. SPEECH CONFLICTING W/ INDIVIDUAL REPUTATION & PRIVACY
Categorically Unprotected Speech
 Chaplinsky v. New Hampshire (1942)
 There are certain well-defined & narrowly limited classes of speech, the prevention & punishment of
which has never been thought to raise any Conxl problem.”
Categories that fall outside the First Amendment
 Lewd & obscene
 Profane
 Libelous
 Insulting or “fighting words”
Libel
 Beuharnais v. Illinois (1952): Illinois statute made it a crime to publish any doc that portrays a group of
people in an unflattering light. D circulated a petition that denounced African Americans moving into
white neighborhoods – said they were responsible for “aggressions…rapes, robberies, etc.” Ds are
convicted under the IL criminal libel statue.
o Majority: Clear & Present Danger Test is irrelevant to this category
 Libel lacks ALL constitutional protection & falls outside of the 1st amendment
entirely.
 If you can punish libel against individuals, you can punish libel directed at a group of
people
 Beuharnais has never been explicitly overruled, but it has no vitality whatsoever
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NY Times Co. v. Sullivan (1964)
o SC changes their understanding of the constitutional parameters of libel. Libel laws MUST
conform to the First Amendment
o First Amendment expresses a commitment that debate on public issues should be uninhibited,
robust, & wide open. The debate may involve sharp attacks on gov’t officials. Thus, the Sedition
Act of 1968 is unconstitutional
o Rule: A public official may not recover damages for a defamatory falsehood regarding his
or her official conduct unless the “statement was made with actual malice, that is, with
knowledge that it was false, or reckless disregard for whether it was false or not” (hard to
recover under this test)
o Things left unclear: what is a public official? (does it include every employee?)
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Technically is limited to official conduct so if the statement is about private behavior or
thing you did prior to taking office, this rule wouldn’t apply to that.
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Gertz v. Robert Welch, Inc. (1974)
o Facts – John Birch society publishes an article about a civil rights attorney, alleging that he was a
communist and had a hefty police record, etc. Gertz sues.
o Majority: no such thing as a false opinion but there are false statements of facts
 Court affirmed – found Gertz was not a public figure; most people hadn’t heard of him
o Definition of public figure: “those, who by reason of the notoriety of their achievements or the
vigor & success with which they seek the public’s attention…Instances of truly involuntary
public figures must be exceedingly rare.”
o Limited Public Figure: you may have someone who is well known for particular issues but not
others – they can therefore be a public figure in certain circumstances
 Need to know specific facts & context
o Private Figure: in an entirely different position bc they aren’t able to engage in self-help (defend
themselves) as a public figure will; haven’t “assumed the risk”; states need more latitude to
protect
 NY Times rule doesn’t apply
 They do NOT need to prove actual malice to bring libel suit
 BUT – they must at least prove fault/negligence (no strict liability)
 No presumed or punitive damages unless prove actual malice (knowledge that it is false
or reckless disregard for whether it is true or false)
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In-Class Hypos:
o Public: Brad & Angelina; Melania Trump
o Private: Karen Pence (might be public figure in Indiana – would be harder case); Tiffany Trump;
guy who won the lottery who came forward promising he’d do good things with the money
o Private: wealthy socialite who had held several conferences; human behavior researcher who
received federal grant money – not even a limited public figure; individual investigated as an
espionage spy – fact that grand jury is interested in someone doesn’t make them a public figure
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Dun & Bradstreet v. Greenmoss (1985)
o Facts – petitioner sent a report to five subscribers saying that a construction contractor had filed a
petition for bankruptcy
o When matters are of private concern, Gertz doesn’t apply and you go with what state libel law is
 Here, the false bankruptcy report wasn’t public because it only went to 5 subscribers
 Speech on matters of private concern is of less 1st Amendment concern
LIBEL STANDARDS
Liability
Standard
Public
Official/Official
Conduct
Public Figures
& Limited
Public Figures
Actual Malice
Actual Malice
Standard for
Presumed and
Punitive
Damages
(Actual
Malice)
Liability
without
fault?
Case
(No)
NY Times v.
Sullivan
Actual Malice
(No)
Gertz
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Private Figures
Public Concern
Private Figures
Private
Concern
Determined by
State Law;
Need not be
Actual Malice
Determined by
State Law;
Need not be
Actual Malice
Actual Malice
No
Gertz/Dun &
Bradstreet
Determined by
State Law;
Need not be
Actual Malice
(Yes)
Dun &
Bradstreet
Questions to Ask:
1) Private or Public Figure?
2) Private or Public Concern?
Ellen Simmons Hypo
 Suppose a newspaper printed a story that said Mark Zuckerberg had filed for divorce against his wife
and it was said to be a bitter dispute, and that statement was false
o Consider Mark Zuckerberg to be a private figure
o Is this a private concern or a public concern?
 One argument for public would say that this might affect the running of the
company/value of the shares
 ^this is a stretch
o what about a report that he had early onset Alzheimer’s?
 This would likely be public concern because if he isn’t fit to run the company, it would
affect people who have stock in the company
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Hypo: Daily mail report that Melania used to work as an escort. Melania sues. Assume for the moment
that private concern stuff is treated differently. The issue is, is it of public concern or private concern
whether she worked as an escort or not?
o Could be a public concern because people based off of someone’s moral character
o This is also potentially a crime depending on where she did this so this would be a matter of
public concern
IIED
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Hustler v. Falwell
o Facts – fake Campari liquor ad about a famous minister, “my first time”. Sues for invasion of
privacy, libel & intentional infliction of emotional distress
o Held: 1st Amendment protects the “vehement, caustic attacks on public figures”
 For a public figure to recover for IIED, there must be a false statement of fact made with
actual malice
 Note: this is the same standard for libel
 Note: rule does NOT apply to private figures
o What if he added his mother as a plaintiff, could she recover for this ad?
 She’s not a public figure, so it’s different
 They don’t refer to her name – only intertwined with Falwell – so probably still public
 She was only referenced weakly
o What if the ad named someone from his HS? – stronger case
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Snyder v. Phelps
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o Facts – Westboro Baptist Church protests approx.. 1,000 feet from the site of the funeral of
Snyder’s son (who was a solider). Snyder didn’t see what the signs said during the funeral but
saw it on the news that night. Wins multi-million dollar judgment
o Majority (8-1) by Roberts:
 Judgment cannot stand bc the issues they were highlighting were matters of public
importance.
 Doesn’t matter that this happened at a funeral. They were on a public sidewalk where the
police said they could be.
 Outrageousness/offensiveness isn’t a clear enough line to restrict speech
 Where matters of purely private significant are at issue, First Amend protections are often
less rigorous because restricting speech on purely private matters does not implicate the
same constitutional concerns as limiting speech on matters of public interest
 Speech deals w/ matters of public concern when it can be fairly considered as
relating to any matter of political, social, or other concern to the community
 Deciding whether speech is of public or private concern requires us to examine the
content, form & context of that speech as revealed by the whole record
 In public debate we must tolerate insulting & even outrageous, speech in order to provide
adequate breathing space to the freedoms protected by the 1st Amendment
o Alito Dissent: funerals are special. Our profound national commitment to free & open debate is
not a license for the vicious verbal assault that occurred here. Saying Snyder was gay is aprivate
concern
Truthful Information & Privacy
Florida Starr v. BJF: daily mail test: if a newspaper lawfully obtains truthful info about a matter of public
significance, then state officials may not constitutionally punish publication of the information, absent a need to
further a state interest of the highest order.
o Highest order = protecting the privacy, physical safety of victims and helping them be unafraid to report
crimes
o Here, this likely would work
o
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Bartnicki v. Vopper: Eavesdropper intercepted private cell phone conversation btw school
superintendent & school’s union negotiator regarding tense union negotiations. Eavesdropper sold it to
radio station that broadcast it. Ps brought suit against broadcaster for violating state law that prohibited
disclosing information from wiretap or other method known to be illegal.
Issue: Whether the broadcast was protected even though the info was initially illegally obtained.
Majority:
o Cannot punish broadcaster who obtained it legally. Distinguished between interception &
disclosure.
o Info was truthful, legally obtained by D, & of public concern – was union negotiations
o Issue: Incentivizes spying
 This case is unique  very rare that someone just sends it somewhere to get it on the
media
 Punishing Vopper won’t deter the original eavesdroppers
o Issue: Minimize harm to victim
 The interest of privacy – don’t want wiretapping of private convos – not enough to
override the speech here bc not actually punishing person who stole the info
 Might have been different if the issues were of private concern.
o Note: holding here is VERY narrow
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Hypos:
 NY Times is given Trump’s bank records which were obtained illegally
o Publish it  matter of public interst, lawfully obtained, no state interest of the highest order
 Bugged SC justice’s private meeting room where they discuss cases. Suppose tape reveals that decision
was made due to a game of Magic.
o Publish it  Unless whether it is a state interest of the highest order to keep these discussions
secret
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Zacchini v. Sripps-Howard Broadcasting (1977): Dare-devil guy did performances where he shot
himself out of a cannon. He charged the audience. TV channel filmed & broadcast his entire 15 second
show – which basically made it so that no one needed to come and see it in person
Majority: 1st & 14th Amendments do not immunize the media when they broadcast a performer’s
entire act w/o his consent
o Just bc there is a right to free speech doesn’t override the state law IP rights to the
performance.
Zacchini v. Bartnicki:
o Lower public interest here
o Higher state interest (protect IP rights against wide dissemination)
o Reducing the Harry Potter republication does not reduce the amount of info out there;
suppressing the conversation in Bartnicki would prevent this information from being made
available.
IV. OBSCENITY & PORNOGRAPHY
Obscenity v. Pornography
 Obscenity: hardcore sexual materials
 Pornography: sexual material
Overview
 Obscenity is completely unprotected (with exception of private use in one’s home)
 Child Pornography is unprotected (even if it doesn’t rise to the level of Miller Obscenity)
 Pornography is protected in many circumstances
o Internet cannot be child proofed
o Virtual child port receives strict scrutiny
o Zoning can limit where porn shops go
Obscenity is not protected by the First Amendment
 Since 1942 – Court has consistently held that obscenity is outside the 1st Amendment
 Used even to suppress classic works of literature
 1957 – Roth v. US – again said that obscene material is not protected
o This remains law today w/ one significant exception – Stanley v. Georgia
 Stanley v. Georgia (1969): Private possession of obscenity in your home CANNOT be criminal
o Still no right to produce, sell, or buy it though
Obscenity receives only Rational Basis Review
 Paris Adult Theatre v. Slaton (1973): movie theater showing an obscene adult movie
 Majority by Burger:
o Categorical disapproval in theory that obscene films have protection because they are simply for
consenting adults
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o 3 reasons why the Court says this isn’t protected under Rational Basis Test
 1) Arguable correlation btw obscenity & crime/antisocial behavior (no evidence but they
say Georgia could think this) – Use Gitlow reasoning – however a very violent
movie/depiction of crime aren’t obscene
 2) Obscenity adversely affect the style, tone, & quality of life in a community – Court
just says that this
 3) The court says that this is just an ordinary regulation of commerce – therefore it
doesn’t raise 1st amendment concerns because you pay to enjoy it
 Larson: not very good arguments
o Class suggestions for different/better arguments
 Zoning of community – theaters just sort of create a menace to the theaters around them
 Doesn’t contribute to the free market place of ideas
 May lead to the deterioration of marriages, children being raised in split homes, greater
risk of sexually transmitted diseases
 Leads to a society that is degrading to women
Dissent: Hard to draw a line. Every obscenity case presents a difficult constitutional issue
Dissent 2: you can restrict access to obscenity
What Constitutes Obscenity?
 Miller v. CA: received brochures unsolicited which depicted books showing graphic sexual images
 Miller Test for Obscenity:
o 1) Whether the average person, applying contemporary community standards would find
that the work, taken as a whole, appeals to the prurient interest
 Average person = reasonable person
 Contemporary Community standard = different standards in different places
 Unclear whether this means national or individual communities
 Prurient interest: essentially means sexually stimulating/arousing
o 2) Whether the work depicts or describes in a patently offensive way, sexual conduct
specifically defined by the applicable state law
 Notice: must be specifically defined by state law
 Patently offensive examples: 1) “representations or descriptions of ultimate sexual acts,
normal or perverted, actual or simulated.”; 2) “representations or descriptions of
masturbation, excretory functions, & lewd exhibition of the genitals”
 Sexual conduct: note that extreme violence is not deemed obscene under this test
 Depicts or describes: need not be photograph; can be writing or drawing
 Community Standards: whether material is offensive is jury question
o 3) Work taken as a whole, lacks serious literary, artistic, political, or scientific value
 Objective inquiry – NOT judged by community standards
 Allows for expert testimony & for judge to override
 Some things that might be gross are still protected (genital warts pics)

Jenkins v. Georgia (1974): major Hollywood film; Georgia tried to prosecute movie theatre for
showing “Carnal Knowledge” mainstream movie. The scene had occasional scenes of nudity, but no
sexual acts or genitalia. Court said this was not enough to be obscenity. Carnal Knowledge was not
patently offensive, as a matter of law.
o Held: Miller obscenity is limited to hardcore pornography; nudity is not enough.
Child Pornography
 COMPLETELY outside the protection of the First Amendment
 Doesn't need to satisfy the Miller Test
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New York v. Ferber (1982)
 Child pornography unprotected by the 1st Amendment
 Possession of child pornography CAN be criminalized
Ashcroft v. Free Speech Coalition
 CPPA Sec 2256 (8)(B): prohibits “any visual depiction, including any photograph, film, video, picture
or computer or computer-generated image or picture” that “is or appears to be of a minor engaging in
sexually explicit conduct”
o 2 categories: (1) “youthful actor” & (2) “Virtual child”
 Issue: is the statute constitutional when it prohibits material that isn’t obscene and that isn’t child
pornography? [NO]
o This is unconstitutional on its face because it is so broad – would apply to anything looking
like it was depicting teenage sex, movies about sexual abuse, etc.
o Difference between this and Ferber = there is no actual child; it prohibits speech that records no
crime and creates no victim by production.
 Gov’t’s arguments: will wet the appetite of pedophiles & because looks like real thing, it makes
prosecuting child porn hard
o Kennedy’s response: the mere tendency of speech to encourage unlawful acts is not a sufficient
reason for banning it. The right to think is the beginning of freedom.
 Dissent: would narrow the statute to make it no longer apply to youthful actors but have it apply to
virtual children indistinguishable from real children.
In-Class Hypos:
 Legal remedies for photo shopping my face on a porn star’s body?
o Answer: libel because effectively making a false statement about me (requires publication
though, so if the person just keeps it for themselves, can’t do this)
 Legal remedies for doing the same thing but a child’s face?
o Even though child wasn’t physically harmed, the mere circulation that looks like they’re engaged
in sexual activity is harmful to a child
Offers or Requests of Child Pornography After Ashcroft
US v. Williams (2008)
 Facts: Congress changes the law after the above & makes it illegal to make offers to provide or request
child pornography
 Scalia Opinion: upholds prohibition on “offer to provide & requests to obtain child pornography”
 This is essentially an offer to engage in illegal activity & this falls outside the 1st amendment –
solicitation has always been outside the 1st amendment
 Dissent by Souter & Ginsburg: selling virtual child pornography but marketing it as real pornography is
protected since there is no real victim.
United States v. Stevens (2010)
 Facts: Depiction of animal cruelty was in violation of federal statute prohibiting depictions of animal
cruelty
 Held: Statute struck down bc overly broad & unconstitutional. Narrower statute may be constitutional
o There are no new categories of completely unprotected speech; depictions of animal cruelty
doesn’t stand outside the 1st amendment.
 Dissent: could construe the statute more narrowly to apply to animal crush videos or dog videos. The
only way to stop the underlying cruelty is to stop the sale of these videos.
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Brown v. Entertainment Merchants (2011)
 Facts: Challenging a state law that prohibited the sale or rental of “violent video games” to minors as
violating the 1st Amendment.
 Scalia opinion: video games are protected speech by the 1st amendment. Not significantly different from
books, plays, movies, etc. in the sense that they have plots and characters.
o Children have 1st amendment rights; there is no broad power to restrict the ideas to which kids
are exposed
o Protecting children from violent video games is NOT sufficient to withstand the strict scrutiny
necessary for this content based law.
 Alito Concurrence: the CA violent video game law fails to provide the fair notice that the Constitution
requires. It’s also vague, doesn’t describe what morbid means
 Thomas Dissent: historically children haven’t had 1st amendment rights outside of their parents
 Breyer Dissent: This is not vague & it satisfies strict scrutiny because there is an interest in preserving
parental authority & state’s interest in the well-being of its children
Garbage Cans Outside of the First Amendment
 Brandenburg – Incitement
 Libel
 Miller Obscenity
 Ferber Child Pornography
First Amendment Land
 Laws restricting speech on the basis of content must be narrowly tailored to achieve a compelling gov’tl
interest (strict scrutiny)
Pornography
US v. Playboy Entertainment Group, Inc. (2000)
 Facts: congress passes a law saying cable operators either have to make no possibility of technological
bleed or show the material only during 10 pm and 6 am. Playboy channel challenges the federal law,
arguing that it violates the 1st Amendment because there are other ways to prevent the signal bleeding
problem
 Held (5-4) Kennedy Opinion: Law only applies to sexually oriented programming channels, which
means this is a content-based restriction. All parties concede material is not obscene.
o Thus, we cross over to “First Amendment Land” and laws restricting speech on content-base
need to be narrowly tailored to serve a compelling gov’tl interest.
o Not narrowly tailored enough bc cable companies could block the material on a house-byhouse basis.
 Dissent (Breyer): state has independent interest in preventing children from seeing adult material
whether parents want their children to or not.
 Rule: Even if we’re dealing with pornography, as long as it isn’t Miller obscenity, it is treated like
other forms of speech
Ashcroft v. ACLU (I) (2002) (we don’t know what community standards really are)
 Congress passes COPA which says: “it is unlawful to knowingly and with knowledge of the character of
the material, in interstate or foreign commerce by means of the World Wide Web, make any
communication for commercial purposes that is available to any minor and that includes any material
that is harmful to minors”. “Harmful to minors” was defined using the Miller standard.
o Lawsuit brought by people providing resources to gays/lesbians, gynecologists, etc. say this
statute is too broad.
 Issue: Community standards – how do you apply community standards to the world wide web?
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Majority (8-1): COPA’s use of a community standards test did not by itself render the statute
substantially overbroad for purposes of the 1st Amendment.
Plurality: the “community standards” criterion as applied to the internet means that any communication
available to a nationwide audience will be judged by the standards of the community most likely to be
offended by the message
Majority seems to see the parent’s interest, whereas dissent views it as the gov’ts interest in protecting
children
9th Circuit recently held community standards is a national standard
(1)Rule: In determining the constitutionality of content-based regulations of the internet, the
government must articulate a compelling purpose for the regulation, and must show that no lessrestrictive alternatives exist for accomplishing that purpose. COPA fails because there were less
restrictive alternatives that better address the government’s concerns (internet software and
blocking). (ACLU 2)
American Booksellers Association, Inc. v. Hudnut
 Facts: the city of Indianapolis enacted an ordinance prohibiting pornography. It defined pornography as
“a practice that discriminates against women”, specifically in a violent or “sexually explicit” manner
o This statute doesn’t fall into one of the trash cans, meaning that we are in first amendment land
 Held: This law is both content & viewpoint discrimination. Viewpoint discrimination will NEVER
be upheld under a strict scrutiny standard
o Viewpoint discrimination bc it declares views degrading women as wrong
Time, Place, & Manner Restrictions
Renton Case
 Facts: ordinance from city in Washington state that restricted adult movie theaters, could not have
theaters within 1,000 feet of residential zone, parks, schools, etc.
 Time, Place, & Manner Restriction
o (1) If content-based, must be narrowly tailored to serve a compelling state interest (strict
scrutiny)
o (2) If content-neutral, must serve a substantial gov’t interest and leave open reasonable
alternative channels of communication (immediate scrinty)
 content neutral = not based on the content of the speech, something else about the speech
that the gov’t is trying to get at.
 Classic example: no one can broadcast thru a sound truck in residential neighborhood btw
9 pm & 6 am
 This is clearly a content-based restriction, so go to #1
o Hard test to meet though, & court doesn’t like outcome. So, court says the purpose of the
ordinance isn’t content-based but it’s that we’re concerned about the negative secondary effects
in the neighborhood that surround the adult theater such as crime, lower property values, general
quality of life, etc.
 Channel ordinance ok because substantial gov’t interest & does leave open reasonable
alternative channels
City of LA v. Alameda Books, Inc.
 Facts: enacted zoning ordinance which dispersed the adult businesses. City believes concentration of
adult businesses will lead to higher crime. Businesses got clever and created 2 businesses under 1 roof.
City amended ordinance say you can’t have this
o City relied on 1977 study that showed a correlation btw concentration of these & crime
 Court: this is time/place, but is content-neutral
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o City does not need to show direct consequence between ordinance & your interest. Just
need to provide reasonably relevant evidence that proves a correlation between the two.
o Rule: If a city zoning ordinance prohibiting certain locations of adult entertainment
stores claims to be “content-neutral” as related to preventing “secondary effects” (e.g.,
crime, prostitution), Court treats the restriction as content-neutral and it is only subjected
to intermediate scrutiny. SUPER fact specific rule—only use for zoning and adult
entertainment.
Recap:
 Obscenity is outside the 1st amendment. With exception to possession of obscenity in the privacy of your
own home. But, can be a crime if you produce it, sell it, distribute it, etc.
 Child pornography: excluded from the 1st amendment even if it doesn’t equal to obscenity.
 Pornography that doesn’t rise to level of obscenity and doesn’t involve children: full first amendment
protection (Playboy, etc.)
o Mere fact children might see it usually isn’t enough to restrict it.
o Exception: if dealing with stores that sell adult content, those can be regulated under the Time,
Place, Manner Restriction
V. FIGHTING WORDS & OFFENSIVE SPEECH
Fighting Words: those words which by their very utterance inflict injury or tend to incite an immediate breach
of the peace
 Inciting: “we should burn this building down”
 Provoking: doing something that provokes someone to respond with violence to you
Fighting Words Lack all 1st Amendment Protection
 ONLY exist when they are likely to cause immediate violent assault
 Fighting words have very slight social value; hard to stop fighting
Chaplinsky v. NH: Jehovah’s Witness who told a marshal “you’re a god damned racketeer” and a “damned
fascist”
 Fighting words is about PROVOKING imminent or immediate unlawful conduct NOT about unpopular
speech
 Not about protecting people from being insulted – it is about the prevention of public brawls; protection
for greater society
Hypos:
 What if Chaplinsky had published these comments in a newspaper?
o Not fighting words bc not immediate
 What if he had said it over telephone?
o Not fighting words unless in close proximity
 What if an enormous, tattooed dude walks into a bar & confronts a tiny, disabled 95 yr old woman?
o There is less likelihood of a fight but highly likely to inflict injury
Wilson Case: inflict injury prong is limited to those cases where there is likely to be an immediate breach of the
peace
 Cited 2 cases which said that fighting words still apply to a person shouting at someone across the street
– court said this is wrong
 GA also let these doctrines apply to someone in a cell shouting to someone else across the way and
suggest this is NOT a fighting word bc it does not create a breach of the peace
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Last case upheld with this was in 1942 – some vitality still, just isn’t prosecuted a lot.
Cohen v. CA
 Facts: The LA Municipal court convicted Robert Cohen for violating the state penal code prohibiting
“maliciously and willfully disturbing the peace or quiet of any neighborhood or person by offensive
conduct”
o Wore a jacket that said “Fuck the Draft”
 Held: gov’t cannot cleanse society of epithets. If directed at the world at large, it is protected. If
directed at individuals in circumstances likely to cause a fight, not protected.
VI. REGULATION OF COMMERCIAL SPEECH
Commercial Speech
 We have all kinds of regulations as to how people conduct commerce, and this shouldn’t be reviewed
any differently (courts typically don’t intervene)
Virginia Board of Pharmacy
 Facts: Virginia had law saying that you can’t advertise any amount or rebate for prescription drugs.
Prescription drug consumers sue saying that they would benefit if this law was not in place.
 Initial Question: Do they have standing? [YES]
o Rationale: if pharmacists do have a right to advertise, there is a reciprocal right of
consumers to see or hear the situation. “Right to hear” case
 State’s argument: prohibiting price advertising is necessary to maintain professionalism
o Court rejects this because standards are already in place
 Held: Speech that does no more than propose a commercial transaction does not lack all 1st
Amendment protection
o Consumers likely have a greater need & demand for commercial information than for political
news – more relevant to daily life
o Lack of prescription price competition hurts the sick, poor & elderly – better for society to be
well informed
o Some regulation IS permissible – Time, place, manner restrictions OK
o False/misleading advertising is unprotected
 Dissent: We regulate everything about businesses in general – why shouldn't the gov’t be free to
regulate their advertising?
o The first amendment was enacted to protect speech relating to public decision-making about
political, social, and other public issues, rather than the decision of a particular individual to
purchase a particular kind of commercial product. The majority’s decision cheapens the
protections of the First Amendment, and risks opening the door to the advertisement of products
deemed harmful to society.
 Concurrence: while this is ok here – it might be different for the professions of medicine & law (***this
does not last)
Central Hudson Gas & Electric Corp. v. Public Service Comm. Of NY
 Facts: public service commission in state of NY was dealing with energy crisis – prohibited electric
utilities to advertise the use of electricity
 Court’s definition of commercial speech:
o (1) proposing a commercial transaction; or
o (2) related solely to the economic interests of the speaker & its audience
 Held: While commercial speech is a lesser protected form of speech, it cannot be regulated in a
way that is “more extensive than is necessary to serve the state interest.”
o Commercial speech gets modified intermediate scrutiny
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Central Hudson rule for commercial speech: is the speech
o (1) speech that is false, misleading, or related to unlawful activity (unprotected)
o (2) the gov’t must assert a substantial interest to be achieved by the restrictions; if not,
speech is protected
o (3) the restriction must directly advance the state interest involved
o (4) if interest could be served by a more limited restriction, the excessive restriction cannot
survive
o Note: Doesn’t have to be LEAST restrictive means – just has to be narrowly tailored
Rehnquist Dissent: going back to Lochner
44 Liquormart, Inc. v. Rhode Island (1996)
 Facts: State of Rhode Island passed a statute prohibiting advertisements that provide the retail prices of
alcoholic beverages.
 Held: Unconstitutional
 4 Justices: Believed Central Hudson test applied & 4th prong fails because it is not necessary to serve the
state’s interest in reducing alcohol consumption; the state could simply tax it more
 Thomas concurring: Rather than applying the 4th prong of Central Hudson to reach the inevitable result
that all or most advertising restrictions must be struck down, he would hold that all attempts to dissuade
legal choices of citizens by keeping them ignorant are impermissible.
 O’Connor concurring: State has other methods at its disposal that would more directly accomplish its
goal w/o intruding on seller’s ability to provide truthful, not misleading info to customers.
 Scalia Concurring: the question to be asked is was advertising considered speech at the time of the 1st
amendment was adopted. Should interpret freedom of speech w/ history.
 Main Takeaways: All of the justices reject the idea that just because the state can ban a product
entirely, a state can take the lesser step of suppressing truthful info about it
o If you are going to make the product legal, you HAVE to permit truthful advertising of the
product.
In-Class Hypos:
 What if the gov’t made cocaine legal but said they didn’t want ads about it.
o Answer: according to this case, not constitutional
 What if state of CA legalized marijuana but restricted advertising for marijuana. Still remains a federal
crime to possess marijuana.
o If this is true, CA would potentially have a loop hole to permit marijuana but restrict the
advertising.
 State legalized prostitution, could they limit advertisement of it?  No
Lorillard Tobacco Co. v. Reilly (2001)
 Facts: Cigarette, smokeless tobacco, & cigar manufacturers & retailers claimed that regulations
promulgated by the Attorney General restricting outdoor advertising, point-of-sale advertising & certain
sales practices for tobacco violated the first amendment & were preempted by the Federal Cigarette
Labeling & Advertising Act
 Held: Outside advertising rule & the 5ft ad height rules are unconstitutional
o Both of these fail Central Hudson test
 They are truthful & not misleading; the state has an interest; not clear that 5ft rule
would serve interest; & BOTH are more extensive than necessary
 The outside rule would basically cover whole city - & cannot child proof the world –
adults have the right to see those ads
o Sales practices ok – narrowly tailored – leaves open other alternatives – can still display
cigarettes – just have to keep them out of reach
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o The regulations barring the use of self-service displays & requiring that tobacco products be
placed out of the reach of all consumers in a location accessible only to salespersons & the ban
on sampling or promotional giveaways of cigars withstood 1st A scrutiny
Kennedy Concurrence: continuing concerns that the test gives insufficient protection to truthful, not
misleading commercial speech
Thomas Concurrence: ready to say that Central Hudson is wrong & the test should be strict scrutiny
In-Class Hypos:
 Suppose state had a law that said you can’t advertise cigarettes in a way that makes it a healthy, fun life
and attracts children (camel smoking cigarette on beach)
o State interest would be the same (keeping children from tobacco)
o Does this pass prong 3? Possibly but probably fails prong 4 as the state could engage in counter
speech
 What about prohibiting them from advertising at sporting events?
o This is more targeted than the example above, but Larson’s guess is that this would be struck
down
 Suppose state had a law that said you can’t market fast-food in a way that’s targeted to children (can’t
use cartoon characters, etc.)
o Probably would still fail on the 4th prong
o There is substantial interest in keeping children from eating fast-food
 Alabama case: wine bottle w/ woman naked. Statute prevented immodest or sensuous people in alcohol
ads.
o Probably doesn’t directly advance state interest to limit alcohol consumption. Even if it did, there
would be other ways to deal with this so it’d be struck down under prong 4
Sorrell v. IMS Health
 Facts: Vermont statute regulating the activities of drug reps who go to doctors’ offices & encourage
them to prescribe their company’s drugs. Enacts law that pharmacies cannot sell data & drug
manufacturers cannot use it as a way to market drugs. But, if the physician consents, then you can use it.
 Majority: The statute at issue amounts to content discrimination, speaker discrimination, & viewpoint
discrimination  heightened scrutiny is warranted
o Under Central Hudson, the law is invalid. Analysis:
o State interest = trying to promote medical privacy
 Court rejects this because they allow medical privacy to be used in other instances
o State’s 2nd interest = trying to prevent harassing behavior and improper pressure in prescription
decisions
 Other ways state can regulate this
o State’s 3rd interest = trying to promote generic drugs over expensive brand-name drugs
 State can’t seek to remove a popular but disfavored product from the marketplace. The
fact that a state finds expression too persuasive is not a reason to restrict what they are
saying
 Dissent (Breyer): only reason pharmacies have this info is because we have gov’t regulation of
pharmacies. This is an ordinary, commercial regulation. All regulatory practices have to some extent
content-based restrictions. This would pass Central Hudson bc no equally effective more limited rest.
 Rule: Where restrictions on commercial speech apply to only one side of a certain type of
advertising, court may find it is viewpoint discrimination & apply strict scrutiny.
 Significance: Court is VERY close to saying that true commercial speech is fully protected
Commercial Speech Key Points:
 If dealing w/ false or misleading speech, there is no 1st Amendment protection
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Advertisement of illegal product can be banned even if it falls short of a Brandenburg incitement
If not dealing w/ unlawful or false speech, the Central Hudson test governs (which is getting harder &
harder to meet)
The usual protections of overbreadth, vagueness & prior restraint do not apply in the commercial speech
context
VII. REGULATIONS OF FALSE STATEMENTS OF FACTS
United States v. Alvarez
 Facts: Alvarez lied at a public meeting for water district board, saying that he had received the
congressional medal of honor. He was indicted under the stolen valor act, which made it a federal crime
to falsely represent oneself as having received any medal by congress.
 Gov’ts argument: Knowingly false statements of fact are outside the 1st amendment.
 Plurality by Kennedy: not going to recognize false statements of fact as unprotected speech
o Previous cases were all in the context of some other legally cognizable harm (defamation, fraud,
someone is the victim) associated w/ the false statement
o A false statement that doesn’t involve harm is in First Amendment land and the test is strict
scrutiny since this is content-based
 Result: the stolen valor act isn’t narrowly tailored to achieve the result
 Remedy should be more speech, not less
 Concurrence by Breyer joined w/ Kagan: relevant test is intermediate scrutiny. Nonetheless, the law fails
because there are other ways that the gov’t can address these issues
 Dissent by Alito + Scalia & Thomas: there is NO constitutional protection for false statement of facts
that inflict real harm & serve no legitimate interest
o There is a harm  dilution in value of medal of honor
 Rule: No separate garbage can for false statements
 Hypo: what if CA decided that there was a lot of false statements of facts on dating styles & bans any
misrepresentations regarding height, income, etc.
o Not enough of a compelling state interest
VIII. VAGUENESS, OVERBREADTH, PRIOR RESTRAINT, & THE CONTENT DISTINCTION
Vagueness: if persons of common intelligence must guess as to its meaning and differ as to its application
 Different than ambiguity (two possible meanings of the word & have to use context to figure out what it
means)
Coates v. Cincinnati
 Facts: Cincinnati ordinance makes it a criminal offense for “three or more persons to assemble on any of
the sidewalks and there conduct themselves in a manner annoying to persons passing by.”
 Majority: Ordinance is invalid on its face
o Statute is vague bc it subjects the exercise of the right of assembly to an unascertainable
standard. Also overbroad because it authorizes the punishment of constitutionally protected
conduct.
Overbreadth
 Statute is overbroad if it goes too far & regulates both protected speech & unprotected speech
 Example: statute that said it’s a crime to advocate the overthrow of the US gov’t
o This is overbroad bc it covers direct acts of violence & advocacy of this
 Options when overbreadth defense is raised:
o (1) construe the statute as to the end where it isn’t overbroad rather than where it actually ends
o (2) strike down whole statute
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Broadrick v. Oklahoma (1973)
 Facts: statute that said if you worked for the state, you couldn’t engage in partisan political activity.
These people were in trouble for soliciting money. They argued that the statute was unconstitutional
because it was overbroad.
o The statute WAS overbroad because it covered protected & unprotected speech.
o Unprotected = soliciting money
o Protected = have a right to wear buttons and have bumper stickers on their cars
 Held: There are certain limits to overbreadth. The overbreadth of a statute must not only be real, but
substantial as well judged in relation to the statute’s plainly legitimate sweep
o If the statute is just a little overbroad, the court won’t invoke this doctrine
 Rule: Statute needs to be substantially overbroad in order for overbreadth doctrine to apply
Brockett v. Spokane Arcades (1985)
 Facts: A state obscenity statute definition used the term “lust” in defining obscene matter. Porn company
sued bc they thought it would be convicted.
 Held: Statute should be narrowed and not struck down since plaintiff had engaged in protected speech
 Rule: Remedies for overbreadth vary according to whether P’s activity was protected or not.
o If the person bringing the case engaged in unprotected speech, then the entire statute is
void. If the person bringing the case engaged in protected speech, the court narrows the
statute down so that it covers only unprotected speech.
US v. Stevens
 Facts: a purveyor of videos of pit bull fighting was indicted for violating a federal criminal statute
banning the commercial creation, sale, or possession of certain depictions of animal cruelty.
 Held: Court holds the statute to be facially unconstitutional as it was substantially overbroad as it applies
not only to “crush” videos and other similar content, but it also applied to depictions of hunting
o The gov’t will not uphold an otherwise unconstitutional law merely because the gov’t
promises to use it responsibly.
Exception to Overbreadth does NOT apply to commercial speech
 If someone lied in an ad for commercial speech and gets prosecuted for this, they can’t use the
overbreadth doctrine to get out of jail free
Three Reasons Overbreadth is usually found to be unconstitutional
 1) Chilling effect: if presented w/ an overbroad statute, people will limit their speech instead of fighting
it
 2) These statutes give way too much discretion to an official (we do not like unbounded executive
discretion)
 3) If the legislature is going to restrict speech, it needs to carefully & accurately draw the line
Prior Restraint
 Prior restraints = prohibition on publishing something before you did so; procedural method that
prevents speech from happening before it is actually expressed
 A prior restraint is NOT a criminal statute punishing speech. In the US we are talking almost exclusively
about injunctions
 If someone is sued for saying something, this is not prior restraint. This is after the fact civil liability
 Prior restraint is essentially a gag or censorship order where you can’t say what you want to say (ex: in
order to publish, have to send everything to a censor ahead of time)
 Hard part: even speech that is unprotected is protected by the prior restraint doctrine
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Near v. Minnesota (1931) (VERY important case)
 Facts: Minnesota statute provided for the abatement as a public nuisance of a malicious, scandalous, and
defamatory periodical. Lower court enjoined further publicatioin of newspaper after it printed a story
about alleged Jewish gangster.
 Held: this is the essence of prior restraint
o One of the main parts of the first amendment is to prevent prior restraint
o Doesn’t matter if it is false/will later be subject to criminal or civil sanctions
 Near Exceptions to Prohibition on Prior Restraints
o (1) Can prevent actual obstruction to recruiting service
 ex. Armed forces
o (2) Can prevent publication of the sailing dates of ships or locations of troops
o (3) Obscene Publications
o (4) Incitements to acts of violence & overthrow by force of orderly gov’t
 (needs to be read w/ Brandenburg)
o (5) Possibly certain private rights
 Not clear what the court means here – could be libel, copy right, etc.
o Note: these are examples and not meant to be generally exclusive
 Dissent: This isn’t technically true prior restraint bc it was based on prior bad content, and the injunction
was to prevent further bad conduct of the sort
Federal Court Injunctions against Vague & Overbroad Statutes
 Suppose want to file suit seeking declaratory injunctive relief that given state law is unconstitutional
o If can show credible threat of prosecution, can go ahead & file suit & get case heard in federal
court
o But if already prosecuted in state context, Younger v. Harris says federal court can’t intervene &
stop ongoing state proceeding, so have to raise 1st A argument in state criminal proceeding itself
o If you lose state proceeding, can file federal suit. You’re not asking for your conviction to be
thrown out, but for future prosecution to be called unconstitutional
Where Prior Restraint still has bite:
 Two basic forms: (1) administrative censorship; (2) court injunction
 Most just punish civilly after the fact
In the US we are talking almost exclusively about injunctions
 Someone could argue that prior restraint could prevent harm from happening
 What happens if you are tried for criminal contempt of a violation of an injunction
 Pretty much the same as a statute except – suppose the trial court made a mistake & it was
unconstitutional – if you violate the injunction & say as a defense that the injunction was not
constitution – this won’t work
 You essentially have to just appeal it to a higher court injunction was invalid – you can’t do this
Collateral Bar Rule: Walker v. Birmingham:
 An unconstitutional injunction has the same binding effect as a constitutional injunction
 Other words: only issue is whether or not you violated the injunction. You CANNOT raise the
unconstitutionality of the injunction as a defense for violating it
NY Times v. US (Pentagon Papers) (1971)
 Facts: Pentagon papers were leaked. Essentially revealed that the US gov’t had lied to the American
people during Vietnam War. First time a federal judge had restrained a newspaper from printing. It was
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rescinded very soon after. There were 2 purported sources of authority: (1) Executive power to conduct
foreign affairs; (2) Executive power as Commander-in-Chief.
Issue: Can the NY times be enjoined from publishing in advance?
No Majority Opinion
o Hard to extract a really clear rule other than a general sense that prior restraints are
bad/impermissible – HOWEVER, there may be some national security exception to that rule but
that exception wasn’t good enough to do the job in this case
o Black: allowing president to halt news production would wipe out 1st A
o Douglas: cannot ever have prior restraint
o Brennan: maybe sometimes it’s ok – but very limited – must be serious wartime.
o Stewart: president or congress could do this, but judiciary can’t get involved
o Marshal: would violate separation of powers to allow president to do this
o Dissent: Courts should defer to the executive w/ respect to the impact of these disclosures on
national security – they know it better than we do.
No bright line rule, but there seems to be some national security exception to the prior restraint rule
(according to Larson)
Nebraska Press Assoc v. Stuart
 Facts: Six people murdered in small town. Court Order in Nebraska prohibited: (a) the existence and
nature of any confessions or admissions made by the defendant to law enforcement officers, (b) any
confessions or admissions made by the defendant to any third parties, except members of the press, and
(c) other facts strongly implicative of the accused
 Held: Court order invalidated – some sort of balancing is appropriate
o Rule: Trial courts should consider: nature and extent of pretrial news coverage, if other
measures would be able to mitigate the effects of unrestrained pretrial publicity, and how
effective a restraining order would operate to prevent the danger.
o Here, there was no evidence that alternative measures would not have worked.
 Concurring justices: would go further and say you can never have these type of gag orders.
Prior Restraint Takeaways:
 Prior restraints refer to procedural mechanisms that prevent publication, usually through injunctions
 Applies to protected & unprotected speech
 Near & NY Times exceptions
Content
Reed v. Town of Gilbert
 Facts: Gilbert, AZ has an ordinance dealing w/ signs. Outdoor signs can’t be displayed w/o a permit.
But, certain types of signs are not included in this & do not need a permit. Church used a sign saying
where their worship service was. Gilbert said sign was too big due to restriction for religious event
signs. Could also only put up sign for 12 hours an they wanted to be able to have their signs up earlier
 Majority (Thomas): Censorship of all speech on a whole topic is a content based restriction & is
therefore subject to strict scrutiny
o 1st A prohibits censorship of all speech on a whole topic
o For content based (strict scrutiny) – intent of the legislature doesn’t matter, the court must look at
what the statute actually says
o In this case it is very hard to come up with what compelling interest the state has
 Alito Concurrence: this decision doesn’t preclude towns from continuing to regulate signs but it stops
them from restricting them in an unconstitutional manner
 Breyer Concurrence: presumption against constitutionality is too strong to use automatically & was
unnecessary in this case as there was another, more appropriate method of analysis available
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Kagan Concurrence: these restrictions didn’t even pass the “laugh test”; always using strict scuritny to
judge gov’t-regulated communication is too restrictive & would water down the meaning of strict
scrutiny
IX. SPEECH ON GOVERNMENT PROPERTY (THE PUBLIC FORUM DOCTRINE)
I. The Traditional Public Forum
Speech on Gov’t Property – The Public Forum Doctrine
 If the gov’t owns property, it is free to exclude anyone from the property in the same manner that
anyone else can. If they don’t like what you’re saying, they can exclude you
 (1) Traditional Public Forum (Primarily Streets and Parks)
o A content-based exclusion must be necessary to serve a compelling state interest and be narrowly
drawn to achieve that end.
o Content-neutral regulations as to time, place, and manner must be narrowly tailored to serve a
signficiant gov’t interest, and leave open ample alternative channels of communication.
 (2) Designated or Limited Public Forum
o Must be treated as a traditional public forum while it is open, but gov’t can close it
 (3) Non-Public Forum
o regulations must be reasonable and not based on viewpoint
Frisby v. Schultz
 Facts: Wisconsin adopted an ordinance that banned picketing of any kind near a residence. A group of
individuals opposed to abortion had been picketing outside the house of a doctor who performs
abortions.
 Court: Upholds the law
o Analysis:
 Because they were picketing on the street and not the house, we are in the Traditional
Public Forum Realm
 Court said this was content neutral because it doesn’t matter what you’re picketing about
– it can be anything
 This is a place restriction
 Significant gov’t interest? Yes – protecting home & privacy
 If you have people protesting in front of your house, this limits how you can use
your house
 Narrowly tailored? – yes, and it left open ample alternative forms of communication
 Brennan dissent: this would prohibit a lone, silent individual holding a sign
 Stevens dissent: disagreed that streets in front of a residence are different; also ordinance gives too much
discretion to officials
Ward v. Rock Against Racism
 Facts: Bandshell in central park used as a public forum. City made rules to control the noise – city would
provide high quality sound equipment & a technician to get best sound.
 Court: upheld Bandhsell rules
o Traditional public forum & no question that music is a protected form of expression under 1st A
o Content restriction? No
o Significant gov’t interest? Yes, protecting residential neighborhoods from unwelcome
neighborhoods
o Narrowly tailored? Yes – you do not need to go w/ least restrictive alternative.
o Ample alternative channels of communication? Yes
 Dissent: Should keep the same test in content neutral & content based worlds, which is LRM
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Madsen v. Women’s Health
 Facts: Florida state court granted a permanent injunction against protesters to prevent blocking access to
an abortion clinic. The injunction included a noise restriction, a 36 ft buffer zone for the
driveway/entrance & near private property, an image restriction, & a no approach w/in 300 ft rule.
Protesters challenged the injunction – said it was viewpoint discrimination bc it only applied to
protesters near the clinic.
 Held: This was a permissible neutral injunction
o Wasn’t based on what the protesters were protesting about – wasn’t bc of what they said – was
bc of past conduct. Limited what they could DO, not what they could SAY.
 Madsen Test for Injunctions:
o Do the challenged provisions of the injunction burden no more speech than necessary o
serve a significant gov’t interest?
 Application: state had a significant interest in medical privacy & guaranteeing women’s right to
abortion, preserving free flow of traffic on streets, & ensuring safety & order.
o Upheld: 36ft buffer zone around entrance & noise restrictions to allow patients to heal
o Struck down: 36ft buffer zone around back & side property (no sign there was a problem there),
images restriction (could close blinds), no approach rule.
 Scalia Concurrence/Dissent: When dealing w/ injunctions, we should up the level of scrutiny to strict
because: (1) fear of suppression of ideas; (2) 1st Amendment is no defense to an injunction (bound by an
injunction until the higher court reverses it)
 Stevens Concurrence/Dissent: injunctions should have a less stringent standard of review
Hill v. Colorado
 Facts: “It is unlawful, w/in 100 ft. of any health care facility, to knowingly approach w.in 8 feet of
another person, w/o that person’s consent, for the purpose of passing a leaflet to, displaying a sign to, or
engaging in oral protest, education, or counseling with such other person.”
o In response to people protesting abortion clinic
o People raised a facial challenge
 Held: Statute upheld.
o This is a minor place restriction on an extremely broad category of communications w/ unwilling
listeners
o Not content-based because on its face, it applies to everyone
o Narrowly tailored – speakers can still talk to passersby, ask to hand info & hold signs
o Gov’t interest: access & privacy, unrelated to protestors’ speech
 Scalia Dissent: Obviously content-based & it would be cited the other way if it involved union members
or anti-war protestors. Not narrowly tailored & restricts a lot of speech
 Kennedy: Dissent this is a content restriction; if it is a moral debate, have to allow for discourse
McCullen v. Coakley (2014)
 Facts: Statute that stated “No person shall knowingly enter or remain on a public way or sidewalk
adjacent to a reproductive health care facility within a radius of 35 feet of any portion of an entrance,
exit, or driveway of a reproductive healthcare facility or within the area within a rectangle created by
extending the outside boundaries of any entrance, exit or driveway of a reproductive health care facility
in straight lines to the point where such lines intersect the sideline of the street in front of such entrance,
exit, or driveway”.
 Court: unanimously invalidated this law
o Content-neutral (the fact that it may disproportionately affect anti-abortion speech is irrelevant)
o Significant gov’t interest? – Yes
o Narrowly tailored? – No
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Most of the problems occurred at only one clinic, and only occurred on Saturday
mornings. Court didn’t buy that Massachusetts tried other means (prosecuting people
under criminal law, didn’t try injunctions, etc.)
Alito Concurrence: Has issue w/ employees being able to be in buffer zone
Scalia Dissent: We don’t need to decide the content neutrality issue bc it fails the narrow tailoring prong.
o Believes the law is obviously trying to restrict content
Significance:
o Roberts siding w/ liberal justices is surprising in an abortion related case
o Hill is still good law
o However, McCullen says that not wanting to hear the speech is NOT a state interest
II. Non-Public Forums and Non-Forums
Adderley v. Florida
 Facts: Students prosecuted for protesting outside of a jail
 Held: upholds the convictions.
o “A state may control the use of its own property for its own lawful, nondiscriminatory purpose.
People do not have a right to propagandize however, wherever, and whenever they please”
o The regulation only needs to be reasonable not based on viewpoint bc this is tin the “non-public
forum” category
 Dissent: Jail was an obvious & appropriate center for protest – need to have a functional analysis of each
type of property depending on what the property is
International Society for Krishna (1992)
 Facts: Airport wanted to get rid of Hare Krishna group that handed out flyers & solicited funds. Airport
authority made rule that forbade the repetitive sale or distribution of merchandise, solicitation & receipt
of funds, & distribution of materials
 Held: This was permissible bc the airport was a non-public forum, so just had to be reasonable & not
viewpoint based
o If not the first two types, then it’s the third.
o It’s not (1) because it hasn’t been historically available for speech activity
o Not (2) because no evidence the intent of having people come to airport was for speech
o WAS reasonable to ban this bc solicitation causes mess, inhibits traffic flow, risk of duress &
fraud. Applies across the board – not viewpoint based.
 Dissent: 2 parts to airport – security screening (non public forum), everything before security (looks like
a mall/traditional public forum)
Arkansas Education TV Comm’n v. Forbes
 Facts: local public TV station held candidate debate for congressional candidates. Did not let an
independent candidate participate. Denied candidate challenged the act as violating the 1st A. Claimed
the station created a limited public forum.
 Held: 4th Forum category created – Non Forum/Not a forum at all
o In this situation, exclusion of a speaker must not be based on the speaker’s viewpoint and must
otherwise be reasonable in light of the purpose of the property.
o Permissible to deny independent candidates bc had limited time & place. Wasn’t viewpoint
based – was based on voter interest. How do we know the different between Non-Public
Forums & Non-Forums?
 Non-Public Forums: viewpoint restrictions are impermissible
 Non-forum: viewpoint restrictions are permissible
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Walker v. Texas Division
 Facts: case about specialty license program. People bringing case want the battle flag of the confederate
on their license plate. Texas rejected the confederate flag bc the symbol is offensive to many people.
Confederates argued 1st A violation
 Held (5-4): All of the TX specialty license plates are not a forum, but are gov’t speech.
o Gov’t is not subject to any 1st A limitations at all
 Gov’t speech arguments: contains the official license of the state of TX, the license plate is technically
gov’t property and will go back to the state when you’re done with it, an official identification card,
reasonable observers would attribute the message to the state
In-Class Hypos:
 License plate that says “democrat” – could the state reject this?
o Court would uphold a fair amount of state control over a license plate
o No decisions following Walker that would indicate otherwise, but this is a bit of a closer case
 Dean of law school having lunch panel; sends out email asking alum what they want to talk about;
someone responds that they want to talk about how getting into law was a huge mistake for them & it
turns out being a lawyer is one of the least popular people in society. Can Dean reject?
o Dean’s strongest argument: not a forum at all. Similar to what was discussed in Forbes
o Court would likely go w/ not a forum at all
X. RESTRICTIONS ON BROADCASTING
Red Lion Broadcasting v. FCC (1969)
 Facts: Radio station let a speaker rant about another public commentator for 15 minutes. FCC fairness
doctrine mandated that the station give air time to the attacked commentator. Radio station challenged
the FCC fairness rules
o Fairness doctrine: if you have a broadcasting license, you must have some news, you must
accurately show each side of the argument, & you must apply the right to reply if you are
personally attacked
 Court: upheld the FCC Fairness Doctrine
o Bc of scarcity of radio frequencies, gov’t can regulate the airwaves to ensure fair coverage
of views & no one has an absolute right to a broadcast license
 Takeaways:
o Red Lion does NOT apply where there is no analogous scarcity,
o Red Lion still applies to broadcasting
o Doesn’t apply to cable TV, satellite radio, etc. b/c you don’t have the same problem of scarcity
FCC v. Pacifica Foundation (1978)
 Facts: Radio station aired George Carlin’s dity words program in the middle of the day. A father
(minister who runs a morality group) & son heard it & complained. FCC said that the program violated
broadcasting rules. Station made 1st A challenge. Note: language not obscene but indecent.
 Court: FCC can restrict use of expletives bc broadcasting is special
o (1) Media pervasive presence confronts a citizen in their home (Prior warning not practical)
 Analogizes to burglary & assault (run away after first hit)
o (2) Broadcasting is uniquely accessible to children – even those too young to read
 Powel & Blackmun Concurrence: Holding is narrow; uniquely available to children; FCC channeled this
routine to other hours; permissible time restraint
 Brennan & Marshall Dissent: If you don’t like the broadcast – you can just turn it off; Bible has raunchy
sections; Public should control
 Dissent of Four: Construe FCC “indecent” as “obscene”
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How is this different from the jacket in Cohen?
 Limited audience
 Broadcasting is just different
 IP issue: reprinted his whole lyrics
In-Class Hypos
 What if the FCC said that in order to protect children we are prohibiting all depictions of violence on tv?
o Seems like under Pacifica they could
 CBS fined $50,000 by the FCC for airing wardrobe malfunction of Janet Jackson during Superbowl
o First Amendment
 Nudity protected under this
 Broadcast television vs. HBO
o Why should the fine be upheld?
 Same reasoning as Pacifica
 Comes into your home
 Uniquely accessible to your children
XI. SPEECH IN PUBLIC SCHOOLS
Tinker v. Des Moines
 Facts: High school in Arkansas suspended students for wearing black arm bands in protest.
 Held: Student speech is protected so long as it does not “materially and substantially interfere
with appropriate discipline in the school” or collide w/ the rights of others
o Conduct or speech? When speech & conduct are intertwined, must look to why the school is
restricting that particular type of conduct.
o If the restriction is based on the conduct’s message, treat it as speech
o Neither students nor teachers shed their constitutional rights at the school house gate
 Dissent by Black: Just like Lochner
Bethel School District v. Fraser
 Facts: Student gave a speech advocating for a fellow student full of sexual innuendos. Record shows that
some students hooted & yelled and graphically stimulated the sexual activities
 Held: Schools are free to limit ‘lewd (sexually suggestive), indecent (bad words), or offensive
speech.’
o The undoubted freedom to advocate unpopular and controversial views in schools and
classrooms must be balanced against society’s countervailing interest in teaching students the
boundaries of socially approved of behavior
o This is an exception to Tinker. If it’s lewd, indecent, and offensive, it doesn’t need to rise to the
Tinker standard
o Ruling doesn’t seem limited to a curriculum setting, seems to apply across the board.
In-Class Hypos
 Wearing a “fuck war” sweatshirt at school  indecent word; can be restricted
 3L used extended, elaborate sexual metaphor that describes students & the law school at picnic day. Can
the dean punish the student for this speech?  Speech less restricted in graduate school, we are adults,
can express ourselves
 Moot court program, during oral argument & the judge asked you about precedence and you said “that
was a fucking stupid decision” & you lose points bc the judge says that was not appropriate  Larson’s
answer: don’t know if this extends to college or graduate schools
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Board of Education v. Pico
 Facts: School Board removed controversial books from the school library. Court split 4/1/4. This is a
more tough case – this is not a suppression case – the books are still available elsewhere – just not in
school library.
 Brennan Plurality (4 justices): defines the issue very narrowly – isn’t the issue of buying books in the
first place – this is about removing existing books.
o School library is an especially appropriate place for the 1st A
o Schools can determine the content of their libraries in acquiring books – but cannot remove
books in a narrow partisan manner
o This rationale in Brennan’s plurality presumably also applies to other public libraries – even less
ability to restrict books bc no educational reasoning
 White concurring in judgment: here were disputed material facts – not appropriate for summary
judgment. Lines up w/ plurality for procedural reasons.
 Dissent (4 justices): gov’t is not acting as a sovereign here; they are acting as an educator. Part of that
educational role is determining what to keep in the library.
o If 1st A governs acquiring books then it governs removing books
o School libraries not appropriate for all books
In-Class Hypos
 What about removing “The Hitman” book from the library?  possible danger to students
 What about acquisition of books? What if you discover the librarian only purchased right wing books?
 seems imbalanced but technically allowed
Hazelwood Sch. Dist. V. Kulhmeier
 Facts: principle reviewed newspaper articles & removed two stories – one about teen pregnancy & one
about divorce. Students sued claiming mental & emotional distress, damage to reputation and denial to
submit these into HS journalism competitions
 Held: Not a forum at all and schools can regulate the curriculum in “any reasonable manner
related to legitimate pedagogical concerns”
 Difference between this & Tinker?
o Tinker was about tolerating speech. Here speech was being affirmatively supported thru the
curriculum
Morse v. Frederick
 Facts: HS student came to watch Olympics Banner that said “Bong Hits 4 Jesus” – wanted to get
television cameras to film them to be on tv
 Held: Schools can restrict student speech at a school event where that speech is reasonably viewed
as promoting illegal drug use
o Tinker still good law
o Fraser is not absolute; there are limits
o Can’t punish student under Bethel as offensive speech
 Alito/Kennedy Concurrence: striving reaffirmation of Tinker. This is at the far reaches of what 1st A
permits
 Dissent: the message wasn’t advocating drug use
In-Class Hypos
 “I love boobies” bracelets to promote breast exams
o Tinker: doesn’t materially or substantially interfere
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o Fraser: doesn’t seem lewd, indecent, or offensive
o Actual case in 3rd circuit: felt that it wasn’t lewd & school couldn’t restrict bracelets
XII. GOVERNMENT SUBSIDIES TO SPEECH
Rust v. Sullivan
 Facts: Title X provides federal funding for family planning services. If you are in one of these federally
funded clinics, the doctor could not recommend abortion for family planning or refer you for an
abortion. Rust argues that Health & Human Services engaged in viewpoint discrimination by passing
Title X
 Held: Rust’s argument fails
 Rule: The gov’t can selectively fund activities that it believes to be in the public interest, even
based on viewpoint
o Limitation here is so that the $ goes to activities that the gov’t wants to fund; this is not a case of
the gov’t suppressing a dangerous idea
 Dissent: This is the first time that a viewpoint suppression is being upheld solely bc it is imposed on
people dependent on the gov’t for economic support.
o This is information that is constitutionally protected and there is no legitimate gov’t interest that
can be served by suppressing this info
Rosenberger v. Univ. of Virginia
 Facts: Christian publication at University of Virginia sues the college bc college refused to give them
money for funding bc of their religion. School was concerned that it would violate the establishment
clause (gov’t can’t fund churches) if it funded this.
 Held: If a gov’t funds a limited public forum to encourage a diversity of viewpoints from private
speakers, some content restrictions may be appropriate but viewpoint discrimination is
impermissible
o This is a limited public forum bc all students have access to these funds, which means that some
school actions could have the effect of creating this type of forums
o This is not a case of the gov’t choosing to pick what it wants to fund & therefore no Rust (if the
answer was Rust then the university wins)
o Rather UofV opened up a limited forum & Rust doesn’t apply
o This is viewpoint discrimination bc the school will pay for some articles but not religious ones.
 Concurrence: providing a room for student group to meet is no different than placing money on the
printer for the student to use
 Dissent: All religious viewpoints are excluded, therefore not favoring one religion over another
NEA v. Finley
 Big dispute over the National Endowment for the Arts b/c some saw some of the exhibits it funded as
offensive. Congress enacts law that the NEA should take into consideration decency & respect to the
diverse values of the American public. 4 artists said this law was impermissibly vague
 Held: Law is constitutional bc it doesn’t on its face discriminate on viewpoint
o Larson thinks this is disingenuous bc Congress obviously meant to do this & any NEA grant is
on the basis of content
o However, court says it’s not viewpoint discrimination bc only says to “consider” the values
o This doesn’t fall under Rosenberger/no limited public forum here bc these grants are very
competitive/have to be top of the top & gov’t doesn’t hand these out to everyone
 Concurrence by Scalia: gov’t can fund whatever it wants w/o 1st A restrictions. Finley can cover her
body in chocolate all she wants, but the gov’t doesn’t have to pay for it
 Dissent by Souter: 1st A bars the gov’t in considering viewpoint in whether it decides to subsidize
speech.
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o This is gov’t acting as a patron of art, rather than the gov’t itself speaking or acting as a buyer
In-Class Hypos:
 UCD law review not accepting article that strongly supports the 2nd A
o Not Rosenberger bc didn’t create a limited public forum
o Finley  Very selective but comes out under school’s name
 Hypo re oil painting of hijackers  viewpoint discrimination
Legal Services Corp. v. Velazquez
 Facts: LSC Act prohibits grantees from engaging in legal representation funded by recipients of LSC
money if the representation involves any effort to amend or challenge welfare laws.
 Held (5-4): Funding provision that limited arguments legal services attorneys were allowed to
make on behalf of indigent welfare claimants violates the 1st A
o Dispute regarding whether Rosenberger or Rust holds here
o Gov’t not the speaker, so covered by Rosenberger
 When LSC attorneys are speaking, they are speaking on behalf of their clients, not the
gov’t. It’s private speech
o Distinguished from Rust: In Rust, did not take away the right to get an abortion or postnatal care,
whereas LSC clients cannot both use LSC & get welfare litigation
 Scalia Dissent: Impossible to distinguish Rust from this – this is clearly not viewpoint discrimination
o Doctors have same responsibility to patients that lawyers have to their clients
United States v. American Library Association
 Facts: Congress passed the Children’s Internet Protection Act which requires any library that receives
the discounted internet rate to install filtering software on the computers. Filters aren’t entirely accurate:
some porn may seep through, sometimes things are over blocked.
 To subsidies at issue:
o (1) When a library chooses what material to put in the library, are there constraints based on the
1st A?
o (2) Can the federal gov’t choose to subsidize certain library programs and not others?
 Plurality Opinion: Both subsidies are ok
o Look at the role public libraries play in society; goal is not universal coverage, but selecting
only those materials that have the requisite and appropriate quality. Not a public forum or
limited public forum
o 2nd Subsidy: Under Rust, gov’t can fund what it wants
 Kennedy Concurrence: assumes material can be quickly unblocked. If not true, he’d be open to an
applied challenge
 Dissent (Stevens): software not very good, sometimes you won’t even know something is blocked
o This is not Rust, because Rust is limited to situations where the gov’t is the speaker; gov’t is not
the speaker on the internet
o Not Finley, because that’s about restrictions on gederal programs
 Souter & Ginsburg Dissent: Blocking material for adult users imposes a content-based restriction that is
censorship
AID v. Alliance for Open Society
 Facts: Federal statute that provides funding for non-government organizations to help combat the spread
of AIDS across the world. Provision of statute was that no funds will be given to orgs that do not have
an explicit policy opposing prostitution & sex trafficking
 Held (Roberts): This statute is invalid. There is a difference that confine limits of gov’t spending
program and conditions that seek to leverage funding outside the contours of the funding itself.
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
o Issue is that condition compels an org to adopt a particular belief & prohibits them from doing
otherwise with their own money
Dissent (Scalia/Thomas): Disagrees, this is just an application of Rust. Gov’t can choose to partner w/
groups that share these ideological commitments
Subsidies to Speech
 Rust – gov’t can fund what it wants, even based on viewpoint. Gov’t = speaker
 Rosenberger – If gov’t funds a limited public forum to encourage a diversity of viewpoints from private
speakers, some content restrictions may be appropriate, but viewpoint discrimination is impermissible
 Finley – Inherently competitive grants are necessarily content-based; viewpoint discrimination in arts
funding may be unconstitutional (question left open)
 LSC – Gov’t is not the speaker; no distortion of private speech (lawyers)
 AM. Library (plurality) – Public libraries can discriminate on the basis of content; gov’t can fund what it
wants
 AID – Gov’t may define the limits of the gov’t spending program, but may not employ conditions that
seek to leverage funding outside the contours of the program itself
XIII. SYMBOLIC SPEECH
United States v. O’Brien
 Facts: O’Brien convicted for knowingly destroying his draft certificate (burned on the steps of
courthouse)
 O’Brien Test
o In cases where speech & non-speech elements are combined in the same course of conduct,
a gov’t regulation is sufficiently justified if:
 (1) it is within the constitutional power of the gov’t;
 (2) it furthers an important or substantial gov’t interest;
 In this case yes, ensures the availability of draft cards. Draft system won’t
function properly w/o it
 (3) the gov’tl interest is unrelated to the suppression of free expression; and
 this was not about restricting his speech, it was about restricting his conduct
 O’Brien argued that what Congress said when they enacted this law – some of
them said they were trying to restrict speech. Court: doesn’t matter if statute is
otherwise constitutional
 (4) the incidental restriction on alleged First Amendment freedom is no greater than
is essential to the furtherance of that interest
o If regulation passes this test, it is upheld (does not violate 1st A)
o If fails the test, doesn’t mean it’s unconstitutional necessarily; go into 1st A tests we’ve learned
In-Class Hypos:
 Burning a sample draft card that had been published  no substantial gov’t interest. So this would be
trying to punish expressive act of burning the card
 Burning armed forces uniform publicly? (assume this is gov’t property & law says you can’t burn gov’t
property)  this can be restricted; gov’t has interest in protecting their own property
 Urinating on City Hall & as he does it he says “I hate the city”  substantial gov’t interest for sanitation
concerns
 Flips off city hall  no substantial gov’t interest here. Middle finger expressive in way urination is not
Texas v. Johnson
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

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Facts: Burned American Flag in front of Dallas City Hall
Held: In order for O’Brien to apply, TX has to assert an interest unrelated to free expression
o TX argues: (1) trying to prevent breaches of the peace; (2) Trying to preserve the flag as
national unity
o Court says (1) doesn’t work – mere potential of breaches of peace does not satisfy
Brandenberg and is not a fighting word; (2) doesn’t work because that’s an expressive
thing
Rehnquist Dissent: It seems unlikely that the 1st A actually permits this action as a form of protected
expression bc of the high level of respect given to the flag
Stevens Dissent: Rules applying to other types of symbols do not control due to the unique nature of the
flag as a symbol of respect - makes 1st A principles inapplicable
In-Class Hypos
 Suppose Johnson is prosecuted under a law that said it is a crime in any public place to create a fire
o Purpose is to prevent fires in public  he COULD be punished for this
 Proposed Constitutional Amendment that says Congress shall have the power to prohibit physical
desecration of the flag of the US
o Larson’s answer: this proposes other problems. What’s a flag of the US? Flag printed on paper?
City of Erie v. Pap’s A.M.
 Facts: City of Erie has an ordinance that prohibits knowingly and intentionally appearing in public nude.
Pap’s A.M. was a nude dancing establishment in Pennsylvania who challenges statute
 Plurality Opinion: Upheld ordinance.
o Have to use 1st A O’Brien test bc nude dancing has expressive conduct
o Analysis:
 Gov’tl interest  ordinance aimed at combatting crime & other secondary effects
associated w/ adult establishments
 Passes 1-3 of O’Brien Test
 4th prong of test: just pasties & a G string, not a large restriction. Passes test
 Scalia & Thomas: this is conduct so don’t need to do O’Brien test
 Souter: Better solution is zoning
 Stevens & Ginsburg Dissent: secondary effects is being used in a total suppression of speech doctrine,
instead of zoning which is where secondary effects was always used
 Note: majority of the court doesn’t think secondary effects justifies this, but this is what plurality says
o Seems to say nudity isn’t expressive, but dancing is
HATE SPEECH
RAV v. City of St. Paul
 Facts: several teenagers made a cross from their chair legs and burned it in the yard of a black family
 St. Paul ordinance: “whoever places on public or private property a symbol, object, appellation,
characterization, or graffiti, including but not limited to a burning cross or Nazi swastika, which one has
reasonable grounds to know arouses anger, alarm, or resentment in others on the basis of race, color,
creed, religion, or gender commits disorderly conduct shall be guilty of a misdemeanor”
 Held: RAV’s conviction reversed & ordinance is stuck down
 Rule: Even within an otherwise proscribable speech like fighting words, you can’t have
discrimination on the basis of content or viewpoint
 The Three RAV Exceptions
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
o (1) When the basis for the content discrimination consists entirely of the very reason the entire
class of speech at issue is proscribable, e.g., you could ban only the most patently offensive
obscenity;
o (2) If the content-defined subclass happens to be associated w/ particular secondary effects of the
speech, so that regulation is justified w/o reference to the content of the speech;
o (3) if there is no realistic possibility that official suppression of ideas is afoot
Note: introduces new under inclusiveness theory (restricting too little speech) & all of the judges agree
that hate speech is NOT outside of the 1st A
Virginia v. Black
 Facts: this case involved two separate cross burnings where the persons who did the burning were
convicted under a statute criminalizing burning crosses w/ intent to intimidate. One was a KKK rally;
the other was teenager who burned cross on neighbor’s lawn to retaliate for gunfire complaints
 Held: State is unconstitutional bc it made burning a cross prima facie evidence of intent to
intimidate
o This can be done for group solidarity, movies, or other reasons
o Created true threats which are not protected by the 1st A. True threats are “those statements
where the speaker means to communicate a serious expression of an intent to commit an
act of unlawful violence to a particular individual or group of individuals.”
o VA can regulate this subset of intimidating messages in light of cross burnings long &
pernicious history of impending violence  falls under 1st RAV exception
 Souter, Kennedy, Ginsburg Dissent: Can’t do this under RAV. Content discrimination bc they picked
one symbol out of the trash can & said they were going to treat that differently; fails strict scrutiny
 Thomas: This statute is ok bc only controls conduct, which is unprotected by the 1st A
Matal v. Tam
 Facts: Lanham Act prohibits the registration of trademarks which may “disparage…persons, living or
dead, institutions, beliefs, or national symbols, or bring them into contempt to disrepute”
 Held: Lanham struck down as unconstitutional viewpoint discrimination
o Speech that demeans on the basis of race, ethnicity, gender, age disability is hateful. But the
proudest boast of our free speech jurisprudence is that we protect the freedom to express the
thoughts that we hate
o Not gov’t speech – this is private speech
COMPELLED AFFRIMATION OF BELIEF
WV Board of Education v. Barnette
 3 years before Barnette: SC held that children have to salute the flag in school
 Held: If there is any fixed star in our constitutional constellation, it’s that no official can proscribe
what should be orthodox in religion, etc.
 Class Discussion: what’s different about this vs all of the other things we force school children to do?
o Answer: all of the other things are part of the curriculum
o Forcing someone to apologize?  hard question, probably can’t be forced to apologize
Wooley v. Maynard
 Facts: Maynard was Jehovah’s Witness who obscured “live free or die” on license plate
 Held: State cannot force you to express a message w/ which you disagree
o Essentially requiring people to use their private property as a mobile billboard for the State’s
ideological message
o Controlled by Barnette
 Dissent: How is this different from defacing US currency?
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
o Answer: greater interest in preventing counterfeit money. License plate is attached to your car,
whereas coins are circulating
Response to majority: nobody would think this NH license plate was Maynard’s opinion
PG&E v. Public Utilities Commission of CA
 Facts: PG&E ordered to allow the extra space in the envelope 4 times a year for the next 2 years to be
given to TURN’s content instead of PG&E’s newsletter. PG&E says no, why should we have to mail out
something that we don’t agree with?
 Plurality: This violates the 1st A bc it interferes w/ PH&E’s own right to speak
o Reality is you’re using PG&E’s envelopes to spread the message, which forces PG&E to
associate w/ views it disagrees with
o Viewpoint discrimination also bc limited to those who oppose PG&E’s envelope being
allowed to put stuff in there
o Case exactly like Wooley v. Maynard
o Plurality applies strict scrutiny & says it’s not narrowly tailored
 Rehnquist Dissent: Believes this doctrine should be applied to individuals but not companies
 Hypo: suppose that we put warnings on cigarettes and suppose a big tobacco company says you’re
compelling us to put this label on our cigarette pack and we disagree with this message
o Gov’t has a very strong interest in discouraging people from using tobacco. Would this be
narrowly tailored to achieve that?
 Probably is most narrow means
Part Two: Equal Protection
I. FREEDOM OF ASSOCIATION
NAACP v. Alabama (1958)
 Facts: State of AL sought to enjoin NAACP from conducting activities in AL. As a part of this, AL
sought the membership list of NAACP. NAACP refuses to bc the members are likely to be harmed
 Held: Producing the membership list would be a substantial restraint on the freedom of
association
o Alabama’s interests are unsubstantial
o Doesn’t clarify the test, but we can assume it’s strict scrutiny
Roberts v. U.S. Jaycees (1984)
 Facts: Jaycees only permitted young males to be regular members
 Two Forms of Association Recognized in Roberts:
o (1) Freedom of Intimate Association (protected for its own sake);
 ex: who you date, marry; who your friends are; small groups like book clubs
o (2) Freedom of Expressive Association (protected for instrumental reasons)
 things that are organized for the purpose of other 1st A purposes (speech, assembly,
religion, etc.)
 ex. Larger groups such as NAACP
 Held: SC upholds state civil rights act
 Rationale: neither of these forms of association have been violated. The local chapters of Jaycees
were neither small nor selective, therefore they don’t fall under #1
o Thus, it would have to be an expressive association and court says the presence of women
would not infringe on the exercise of these other 1st A rights, nor the availability of the
Jaycees to disseminate its preferred views.
 Intimate Category = almost absolute protection
 Expressive Category = not absolute protection for membership
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In-Class Hypo:
 Suppose the Jaycees came to court & said: “part of our message is to assert the idea that women are
inferior. Would the case have come out the same way?
o The next case suggests perhaps not. Had the Jaycees been willing to own that particular messge
then maybe a different result would have come
Boy Scouts of Am. v. Dale (2000)
 Facts: Boy Scouts revoked Dale’s membership when they determined that he was an avowed
homosexual and gay rights activist. NJ court said that Boy Scouts were subject to the NJ public
accommodation law/
 Held: for Boy Scouts
o Boy Scouts are an expressive association bc the primary purpose of the boy scouts is the
installation of values
o Boy scouts told the court that they teach that homosexual behavior is immoral and that
they don’t want to promote homosexual behavior
o Dale’s presence as a boy scout leader would force the organization to send a message that
homosexual conduct is acceptable – which is what makes this different from Roberts
o Court said they will defer to an association’s stating that they have these views, and to their
assertion that Dale’s presence would undermine that expression
 NJ SC had other arguments: an anti-gay message doesn’t seem to be anything that the Boy Scouts are
about
o Court says it’s enough that they engage in some expressive activity – doesn’t need to be the
main point
 NJ SC also said that the Scouts don’t generally discuss this, the boy scout handbook doesn’t really say
anything in there about sexual orientation
o SC says this doesn’t matter, it’s enough that they teach by example
 Test is strict scrutiny: has NJ asserted a compelling interest and done so in a compelling way?
o The court doesn’t squarely tell us that. All it says is that the NJ interest isn’t sufficient
 Dissent: the boy scouts have failed to establish any consistent, unequivocal position on sexual
orientation
o Until today, we have never once found an acclaimed right to associate above the state’s
anti-discrimination law
 Note: Dale is limited to cases about membership
In-Class Hypos:
 Suppose that after the Dale case, a private school took the position that homosexual conduct is immoral.
Could they refer to hire openly gay people as teachers or faculty?
o If the university is an expressive association, the school would likely have a good argument
under Dale to do this
o What if school asserted that part of their message is white superiority? Could they only hire
white people?
 Probably wouldn’t be ok. Courts tend to find compelling interest in stopping racial
discrimination
Rumsfeld v. FAIR (Part II) (2006)
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o Facts: law schools raise a freedom of association argument in challenging the Solomon Act – they point
to Dale & say that schools are expressive associations & the military recruiters would undermine the
school’s message of acceptance
o 2004: 3rd Circuit accepted this argument; said that we have to defer to law schools like they deferred to
boy scouts in Dale
o SC would need to ask – is a law school an expressive association?
o Doesn’t need to be the main message according to Dale, but just needs some expressive message
CLS v. Martinez (2010)
o Facts: UC Hastings has non-discrimination policy (RSOs can’t discriminate based on religion, national
origin, sexual orientation, etc.) and that every group must accept every student that wants to join. CLS
was denied RSO recognition bc they didn’t allow homosexuals; they sue arguing 1st A violations.
o Majority (5-4): Hastings’ recognition of student groups constitutes a limited public forum. Allcomers policy is a reasonable, viewpoint neutral condition on access to the public forum.
o Opportunity of hostile takeover of clubs?
 Court says there’s no evidence that this has ever happened & Hastings could revise its
rules if this were to become a realistic possibility
o Alito Dissent: All-comers policy is no the actual policy. Actual policy = non-discrimination
o Under the non-discrimination policy, only religious groups were required to accept members
who did not share their beliefs.
 This constitutes viewpoint discrimination against religious groups bc it favors one side of
the sexual orientation argument
o Worried about hostile takeover of student groups
o Stevens Concurrence: both all-comers & non-discrimination are constitutional
o Kennedy Concurrence: all-comers policy not based on content or viewpoint, it was to allow all students
to interact w/ their colleagues across a broad range of activities
INTRODUCTION/SOCIAL AND ECONOMIC REGULATORY LEGISLATION
Background
o As US expanded west in 19th Century – there was question of whether slavery would expand w/ it.
o SC held that African Americans are not & never can be citizens of the US & Congress did not have
power to end slavery or prohibit it in the territories. (Dred Scott) – there was a right to slavery
o After Civil War, our 13th A passed prohibiting slavery everywhere
o South was very unhappy – passed a series of laws to reduce blacks to a state as close to slavery
as possible  the Black Codes
 Black people couldn’t testify in court, couldn’t sue, couldn’t marry, couldn’t own
property
o In response, Congress passes Civil Rights Act of 1866  but Johnson vetoed the law as outside
the legislature’s power. But Congress overrode his veto & passed it.
o Also passed 14th A to make sure CRA stuck.
Amendment XIV, Section One
o All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens
of the US and of the State wherein they reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of the United States; nor shall any State deprive any person of life,
liberty, or property, w/o due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
o Court initially said that the 14th A was limited to racial discrimination in respect to African Americans
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Equal Protection: The Three Tiers of Scrutiny
o (1) Strict Scrutiny: Laws must be narrowly tailored to serve a compelling state interest;
o (2) Intermediate Scrutiny: Laws must be substantially related to an important state interest;
o (3) Rational Basis: Laws must be rationally related to a legitimate state interest
What does it take to get to strict scrutiny or intermediate scrutiny?
o Suspect class where we think the gov’t needs to be on guard against harmful classifications or there’s a
fundamental right involved
Gulf, Colorado & Santa Fe RR v. Ellis (1897)
o Facts: TX law – if you have law suit against railroad, could get costs & fees. This allowed these
plaintiffs to get costs when other Ps suing companies couldn’t.
o Majority: Cannot have arbitrary distinctions among groups. The legislation is invalid bc it is
unfair to railroads.
o Court used 14th A to invoke equal protection & due process for big companies
Railway Express Agency v. NY (1949)
o Facts: Statute that you can only advertise your business on a truck if you own the truck. State says the
reason for this distinction is traffic problems
o Majority: Holds for the state
o Applies rational basis test: is there any conceivable statement of facts – doesn’t matter if those
facts actually exist
o It is totally irrelevant if the facts being discussed now actually motivated the legislature – what
they thought when they originally passed the law doesn’t matter
o Gov’t can go piece by piece – gov’t can go one step at a time – even if it means treating similar
things differently
o Courts usually think legislatures are better fact finders than the courts
o Court didn’t entertain the equal protection claim here – today this would probably fail under
equal protection but may work under commercial speech
FCC v. Beach Communications (1993)
o Facts: Cable tv law made it so that some cable was regulated (single houses) but some was not (cable
that serves buildings under common ownership or management). By exempting some of the cable & not
the rest, there was a question of whether the distinction was constitutional.
o Held: A statutory classification that doesn’t have suspect class or infringe on constitutional right
only needs to be plausible (only needs to have some rational basis)
o Doesn’t need date
o Legislatures can deal with a problem one step at a time; need not address all or nothing
 Legislation must be allowed lee-way to approach these issues incrementally
II. RACIAL CLASSIFICATIONS
Yick Wo v. Hopkins (1886)
1.Rule: A facially neutral law that is applied in a discriminatory manner on the basis of race violates
the Equal Protection Clause of the Fourteenth Amendment. EPC applies to ADMINISTRATION of
laws, not just the laws themselves. Cannot apply a neutral law with an “evil eye” or “uneven hand.”
EPC applies to groups other than freed slaves, and includes non citizens.
2.Facts: In 1880, San Francisco passed an ordinance that required operators of laundries in buildings
not made of brick or stone to apply for a permit to continue operation. At the time, 320 of the laundries
in San Francisco were constructed of wood. Yick Wo is a laundry owner of Chinese descent. He and
200 other laundry owners of Chinese descent (plaintiffs) sought permits to continue their operations.
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All of their petitions were denied. However, 80 of 81 petitions by similarly situated laundry operators
who were not of Chinese descent were granted permits. The plaintiffs were fined and imprisoned after
they continued to operate their laundries without permits.
3.Issue: Does a facially neutral law that is applied in a discriminatory manner on the basis of race
violate the Equal Protection Clause of the Fourteenth Amendment?
4.Holding: Yes. The Fourteenth Amendment guarantees the equal protection of the laws to all people
within the United States. Equal protection is denied when a facially neutral law is applied unequally
among similarly situated people. Here, the San Francisco ordinance appears to be neutral and fair on
its face. However, the ordinance has been applied unequally to similarly situated people.
Notwithstanding the fact that the plaintiffs have complied with all requirements of the ordinance, the
administrators denied all 200 of their petitions, while granting permits to 80 of 81 applicants who were
not of Chinese descent. These facts demonstrate that the plaintiffs were denied permits for no reason
other than hostility against their race.
Plessy v. Ferguson (1896)
 Facts: Louisiana state law required black & white people to ride in separate railroad cars. P was 7/8
white and 1/8 black & was told to leave the white train car & sit in black train car. P challenged the law
under equal protection, arguing that he had the same rights as any other citizen
 Majority (7-1) by Brown: Law is constitutional
o Amendment was designed to create political & legal equality, but not social equality. Social
equality must come organically from the two races liking each other – not from laws
forcing it.
o Deference to the legislature that there is a rational basis for this law – such as maintaining
the peace & order & comfort of passengers
 What about the “anti-subordination” aspect of Equal Protection?
o Court said separate but equal was not to imply inferiority but was for comfort of both. If
blacks feel inferior from these laws – it is only bc of their own interpretations
 John Marshall Harlan Dissent: everyone knows the statute in question was to exclude colored people
from white people not to keep whites separate from colored people
Buchanan v. Warley (1917): Invalidated Louisville ordinance that imposed mandatory residential
segregation. SCOTUS said 14th Amendment allows black man to acquire property w/o state
legislation discriminating against him solely on his skin color. Different from Plessy because SCOTUS
said in Plessy that blacks have equal access. People came up with restrictive covenants (private
agreements).
Hirabayashi v. United States (1943)
 Facts: Hirabayashi deliberately violated the Japanese American curfew and turned himself in
 Held: SC unanimously affirms his conviction
 Rule: The curfew is constitutional bc persons of Japanese descent presented a special danger to
the community in the context of the war against Japan and it was not feasible to determine loyalty
on an individual basis
Korematsu v. United States (1944)
 Facts: Korematsu remained in San Leandro, CA despite exclusion order from West Coast
 SC affirms conviction; doesn’t address constitutionality of detentions; only about exclusion from the
West Coast at the time the order was issued (1942)
 Held: Racial restrictions are immediately suspect and subject to the most rigid scrutiny (origin of
strict scrutiny test for race)
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
o Court said this was a military emergency, US was at war with Japan, evidence of disloyalty
on the part of some, need for action was great & time was short
3 justices dissent: unconstitutional discrimination on the basis of race
o Jenson: the court for all time has validated racial discrimination, this will cause problems doen
the road
Never been explicitly overruled, but don’t cite it
Ex Parte Endo (1944)
 Decided on same day as Korematsu. Evacuation of Japanese Americans during WWII
 Facts: concededly loyal citizen, no reason to think she wasn’t
 Held: She must be released bc her detention exceeded what was permitted under the executive
order
o The statute does not authorize this particular detention
o To read the statute this broadly would be to assume that this discriminatory action should
be taken towards these people even though the gov’t conceded their loyalty to this country
 2 justices stated detentions weren’t constitutional
 Murphy: unconstitutional resort to racism inherent in the entire evacuation program
 SC never upheld the exclusion of Japanese Americans during WWII, only upheld west coast evacuation
 At time this was decided, FDR administration had already decided to close the internment camps
 Larson’s comment: not sure if gov’t hadn’t conceded that she was loyal if this would go differently
Brown v. Board of Education (1954)
 Missouri XL (1938)
o Facts: state wouldn’t allow black law students in its schools, but would pay for them to go to
school out of state
o Majority (6-2): unconstitutional, can’t pay for law students to attend school out of state
 Sweet v. Painter (1950)
o Facts: Texas established black law school that was supposed to be equivalent to UT white law
school
o Majority (Unanimous): these are not equal in terms of prestige, faculty representation,
community standing, and doesn’t provide opportunity for blacks to interact with lawyers
who were mostly white
 McLaurin v. Regents (1950 – same day as Sweet was decided)
o Facts: P was admitted to a white university, but was physically segregated from his white
students. Had to sit in another room but still able to listen in to what was going on
o Majority (Unanimous): these restrictions are unconstitutional; impair and inhibit his
ability to study, learn his profession, & interact with other peers & professionals
 Vast difference between state refusing individuals to comingle and individual
choices to comingle with different races
o Note: technically ruling only applies to graduate education
 Brown v. Board of Education (1954)
o Facts: 4 consolidated cases from different parts of the country. Each case comes from students
asserting that they were denied admission to public schools on the basis of their race.
o Majority (Unanimous): Struck down segregated schools
 Historical evidence surrounding 14th A is inconclusive; public education was not very
advanced when 14th A was amended
 Court noted that the schools here are substantially equal other than segregation
 Court says we have to look at the role of education in modern American life. To
separate school children from others of a similar age and qualifications solely bc of
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their race generates a feeling of inferiority in their hearts in minds that is unlikely to
be ever undone
 Therefore, separation education facilities are inherently unequal
 Brown does NOT hold that segregation outside the public school arena is
unconstitutional. Thus, did NOT overrule Plessy v. Ferguson
 The rationale of Brown (that education has changed since passing of 14th A
doesn’t even apply to railroads)
 Moreover, nothing in Brown opinion that would apply to railroads
 Reliance on psychological studies limits the effect of Brown
 What if the studies were found to be wrong? Lacks actual constitutional law
reasoning – instead relies on sociologist findings – which leaves Brown open to
attack that is not based on law
o After Brown:
 Other cases came in challenging segregation in other areas, & the Court did not give
opinions there but merely gave summary affirmances w/o opinion
 But then how do you apply the psychological studies in Brown to explain the decisions to
desegregate public beaches, auditoriums, etc.?
 The ONLY explanation is that segregation is unconstitutional no matter
what
 But, when never got a case opinion that says this ^
The Southern Manifesto
 Statement by large number of Southern congressman stating their objections to Brown
 Key Arguments:
o 1) Constitution doesn’t say anything about it – racially segregated schools were initiated in the
North
o 2) Framers who ratified 14th A supported segregated schools
o 3) Court is stepping into an area reserved to states & localities
Bolling v. Sharpe (1954)
 Facts: In Washington DC, they had segregated schools
 Note: 14th A states “No state shall…deny to any person within its jurisdiction the equal protection of the
laws”. Problem is that Washington DC is NOT a state
 Held: Racial segregation is unlawful under the DP clause of the 5th A.
o Court concedes that the 14th A doesn’t bind the federal gov’t, it only binds the states
o BUT the federal gov’t is bound by the 5th A, which in effect, contains an equal protection
component. Liberty under law extends to the full range of conduct that the individual is free to
pursue and cannot be inhibited unless there is a proper gov’t objective
 Segregation of schools is not a proper gov’t objective
o Court does have some precedence – constitution forbids racial discrimination by federal gov’t
(Gibson v. Mississippi)
o Larson says court also could have (but didn’t) cite to Korematsu – this was a racial segregation
challenge to federal gov’t. court said that racial classifications are subject to the most rigid
scrutiny
 When you have a discrimination case against the gov’t, you don’t cite the 14th A. This is a way to get
your case dismissed. You need to plead it as discrimination under the 5th A
 Does the equal protection clause applied by Bolling apply the same way to the states? Generally, yes.
Brown v. Board of Education (II)
 Court already has decided racial segregation is unconstitutional, question now is what remedy to use?
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

Court sent the case back to the lower courts for them to decide what the remedy should be
Held: Integration should happen with “all deliberate speed”
o It was not going to be immediate integration after Brown
What did Brown actually accomplish?
o 10 years after Brown, only 1 black child in 100 attended racially mixed schools in the south
o 1966, not a single black teacher in formerly white school in Alabama
Other Racial Classifications
Background
 Pace v. Alabama
o state can punish interracial non-marital sex more harshly than intraracial non-marital sex
o court said this is not race discrimination because both black and white participants are punished
the same, thus it does not violate equal protection clause
o State of CA still has ban on interracial marriage in 1948
o 1964 McLaughlin v. Florida overrules Pace
Loving v. Virginia
o Facts: interracial couple arrested for getting married & then moving back to Virginia. Judge lets them
off instead of the 1-year sentence w/ the caveat that they could never return to the state of Virginia for
25 years. Couple appeals to set aside the sentence
o At time this case was heard, 16 states had similar provisions against interracial marriage
o State’s Arguments:
o (1) historical materials show that the framers of the 14th A didn’t intend for it to abolish bans on
racial marriage.
o (2) the law is fair because it applies equally to blacks and whites, and this is sufficient under
equal protection
o (3) rational basis for the law based on scientific evidence  court should defer to legislature on
the science
 argument that specialization of races that produces people are superior to the product of
racial crosses
o Held: the clear and simple purpose of the 14th A was to eliminate all sources of racial
discrimination in the states
o Racial classifications require the most rigid scrutiny
 Here, there is no justification for this classification
o Restricting the freedom to marry solely because of racial classifications violates the central
0meaning of the equal protection clause
Palamore v. Sidoti (1984)
o Facts: had daughter with white husband. Got divorced and remarried to a black man. Father of child
sought full custody. FL court granted father full custody because of mom being in interracial
relationship because child would be subject to social pressures
o Held (unanimous): trial court’s action violated the equal protection clause
o Racial classifications are subject to the most exacting scrutiny and must be necessary to satisfy
the most compelling interest
o If you come up with another way to achieve the compelling interest, you HAVE to do it the other
way
o Private biases may be outside the reach of the law but the law cannot directly or indirectly
give them affect
 In response to child having to deal w/ social pressures arising from mom’s relationship
In-Class Hypos:
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o State has adoption agency. Could a state say that all things else being equal, we will place the baby with
perspective parents of the same race.
o What if state says it would make it easier on the child growing up if they look like their adoptive
parents?
 Under Palamore this seems to be giving legal effect to private biases. No compelling
state interest
o Suppose two interracial couples, black child, but one couple lives in an ethnically diverse neighborhood?
Can we take the environment into account?
o This is a probably hard to justify under strict scrutiny
o Federal statute says you can’t deny or delay adoption on the basis of race but if no delay then the
statute wouldn’t be implicated
o Suppose the state wants to make adoptions diverse?
o There is a gov’t interest in fostering diversity
o What if parents came to adoption agency and say “we only want to adopt a child of a particular race?”
o This isn’t the gov’t, it’s the individuals’ own biases
o Also different because Palamore was about ripping families apart, it’s not the same as someone
welcoming someone into their family. Similar to choosing who you’re going to marry
Johnson v. CA (2005)
o Facts: Policy under review was that when prisoners arrived to prison, they were placed in cells on the
basis of race. Race is only one of many factors considered, but it is a dominant factor. State says purpose
is to decrease the violence associated w/ race based gangs.
o Issue: What is the standard of scrutiny that applies to this classification?
o Racial classifications in prisons are subject to:
o (A) Strict Scrutiny (majority)
 this is consistent with a line of cases, no exception for prisons
 court doesn’t actually apply strict scrutiny in this case, sends it back to the lower court;
but felt that this policy might exacerbate racial tendencies
o (B) Turner v. Safley Standard (Rational Basis): “reasonably related” to legitimate penological
interests” (dissent)
o Stevens Dissent: would apply strict scrutiny and say the policy is unconstitutional
o Thomas/Scalia Dissent: rational basis test, should defer to prisons
o Difference between majority/dissent
o Dissent doesn’t think you have much rights in prison
o Majority thinking of it in bigger terms, looking at these rights on society as a whole
In-Class Hypos:
o What would it take for the prisons to win in this case?
o State would argue that concern is trying to preserve life. What if they say that it’ll save 3 lives a
year? Would this be sufficient?  state would have to show they have tried other ways of
accomplishing this, and it hasn’t worked
o What about only putting one person per cell?  this would be really expensive, don’t have the
money to do anything else (would be only way to further state interest)
o What about having separate prisons based on race in order to significantly reduce violence?
o This would have to be an uphill battle, would have to show this is the only way to accomplish
goal
o What about during race-related fights in prison?
o Can probably segregate based on race to save lives. But that’s pretty much the only time
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Note: Strict Scrutiny applies even if all races are treated the same
III. CLASSIFICATIONS BASED ON GENDER
Background:
o Adkins v. Children’s Hospital: law that said that women but not men would receive a minimum wage.
o Court: minimum wage laws are unconstitutional as opposed to men. Since gov’t can’t impose
minimum wage law for men, can’t do this for women either. This is because 19th A had just
passed, men and women should be treated equally.
o Invalidated bc of gender distinction
Is gender the same as race and should strict scrutiny been applied?
o Court generally takes intermediate scrutiny
o Classification must be substantially related to an important state interest
Reed v. Reed (1971)
o Facts: Idaho law said that in deciding who is to administer a state, males must be preferred to females.
Idaho argues they are trying to reduce the workload of probate courts – don’t want a ton of disputes over
who will be the administrator, this will save time.
o Woman’s argument: gender distinctions are the same as racial classifications
o Held: Classification here is irrational but entirely ignores Ginsburg’s (woman’s lawyer
arguments)
o Giving mandatory preference of one sex over the other merely to make something easier is
the type of arbitrary choice that is remedied by the equal protection clause
o This is rational basis review
o Transitional case – court is starting to pay attention to gender issues but w/o taking the larger step of
finding gender a suspect class
Frontiero v. Richardson (1973)
o Facts: male member of armed forces could claim his wife as a dependent and no factual investigation
will be completed if she is actually dependent. A female member could not claim her husband as a
dependent unless he is in fact dependent on her for over ½ of his support. Challenged under 5th A bc it
was a challenge to federal law (under Bolling v. Sharpe)
o Brennan Plurality (4 justices): argues classifications based on sex are inherently suspect and must
be subject to strict judicial scrutiny. This is just like race
o Women still face pervasive discrimination in job market, political arena, etc.
o Brennan cites Equal Rights Amendment which had yet to be ratified at the time
 Equality of rights under the law shall not be denied or abridged by the US or by any state
on account of sex
o Basic justification for this is administrative convenience which is not a compelling interest
o Rest of Plurality (3 justices): invalid under rational basis
o Dissent: this is constitutional under rational basis review
In-Class Hypos:
o Why would the Brennan opinion argue the classifications based on gender are suspect when women are
half of the population and this is a group that is a majority? (meaning could trust the process to work)
o A lot of the laws were written when women didn’t have the right to vote. Look at who serves in
legislatures (overwhelmingly men)
o Was there any likelihood that said women were forbidden from driving cars?
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o No, any legislature who supported that would be voted out immediately. Thus, the likelihood of
laws that discriminated against women like this is low. So why not also trust the system for these
little things like family dependency law?
Equal Rights Amendment
o Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by
any State on account of sex.
o Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of
this article.
o Section 3. This amendment shall take effect two years after the date of ratification
o Larson’s notes on this:
o Unclear how much force you should give to a failed or proposed amendment
o Another problem: if this equal rights amendment passes, then surely congress itself should fix
this problem in the military benefits situation. But yet, congress hasn’t
Craig v. Boren (1976) (first time 5 or more justices agree to heightened scrutiny for gender
classifications)
o Facts: An OK statute prohibited the sale of “nonintoxicating” 3.2% beer to males under the age of 21 &
to females under the age 18. P was a male between 18-21 years’ old who sued claiming unconstitutional
gender based classifications. State argued that it had an interest in preventing drunk driving, & young
men 18-21 are more likely to drive drunk than females of that age. State relied on idea that men drink &
drive more than women. (note, this would pass under rational basis)
o Craig v. Boren Intermediate Scrutiny Test
o A gender classification must be substantially related to an important governmental interest
o Held: state’s arguments don’t pass intermediate scrutiny because still only 2% of men drive
drunk. While it’s true that 10 times the number of males are arrested for drunk driving, only 2%
of the total male population was actually arrested so it is hard to say that being male = drunk
driver.
o Also, if we’re concerned about drunk driving, 3.2% beer aren’t that intoxicating. Also, they
can drink this under the OK law, but can’t purchase it. This means that this preventing
sales to try and prevent drunk driving doesn’t work under intermediate scrutiny.
o Doesn’t matter whether it’s man or women getting short end of stick, either way it’s
subject to intermediate scrutiny
o Rehnquist Dissent: why should a law disadvantaging men be subject to higher scrutiny than ordinary
law? What is the constitutional basis for this intermediate scrutiny test? The court is making this up. We
should apply rational basis and this law passes rational basis.
Michael M. v. Superior Court
o Facts: Statute in CA made it illegal to engage in “an act of sexual intercourse accomplished w/ a female
not the wife of the perpetrator, where the female is under the age of 18 years”. Effect of the law was that
man but not women were subject to prosecution for statutory rape.
o Held: Affirmed statute in plurality opinion
o Rehnquist Plurality: the court consistently upholds statutes that reflects the fact that the sexes are
not similar situated
o State says the law is to prevent illegitimate teen pregnancies & CA SC defers to this
o Court also says that only women can become pregnant & they suffer a lot of consequences by
becoming pregnant – especially at an age where they can’t handle this
o Makes sense to punish men who lead to the problems of pregnancy w/o suffering any of the
consequences (evens the field between men & women)
o Gender neutral statute would be even worse because females would be discouraged from coming
forward and face double the consequences
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o Brennan Dissent: test is, is this substantially related to an important state interest? This isn’t
substantially related to preventing pregnancy and the initial idea behind the law wasn’t to prevent teen
pregnancy but because women were considered to be incapable of giving consent.
o Stevens Dissent: state could ban all unmarried teenage sex if it wanted to, but can’t do it selectively like
CA did here.
Rostker v. Goldberg
o Facts: Men challenging the draft for not being gender equal. 5th A argument bc brought against fed. gov
o Held: No problem w/ this statute.
o Congress thought about opening the draft up to women and decided not to.
o Given that women are excluded from combat – excluding women from the draft is ok
o Dissent: all assume that the combat distinction is legitimate. But they say there are other roles in the
military, including other non-combat roles, so we should not be excluding women.
In-Class Hypo
o Suppose that a law excludes women from all combat  gov’t would need to show a valid, legitimate
gov’t objective and that this law accomplishes the goal then this would be ok
o One argument gov’t could make was that allowing women in would undermine unit
effectiveness (one concern would be sexual assaults; men are trained to protect women, if
women are serving side by side, a male soldier will protect woman next to him instead of
fighting back)
o Class says these arguments likely wouldn’t pass intermediate scrutiny. Train military soldiers out
of instinct to protect women
JEB v. Alabama
o Peremptory Challenges
o Batson v. Kentucky (1986): Prosecutors cannot use challenges on the basis of race
o Edmonson v. Leesville Concrete Co. (1991): Civil litigants may not use challenges on the basis
of race
o Georgia v. McCollum (1992): Criminal defendants may not use challenges on the basis of race
o Facts: Challenges in jury selection. Male D is charged w/ failure to pay child welfare. The D struck all
women and only wanted men.
o Issue: does the Batson challenge based on race extend to gender?
o Held: court extended Batson to say that gender based strikes are unconstitutional
o State cannot engage in these types of actions that reinforce stereotypes even if these
stereotypes have some basis in facts
o O’Connor Concurrence: agrees w/ holding so long as we’re only talking about prosecutors. Shouldn’t
apply to Edmonson or McCollum cases
o Rehnquist Dissent: this is v different than peremptory challenges based on race
o Scalia Dissent: If men & women are interchangeable, then the only harm is to the juror and not the
defendant. In any event, this view is contrary to cases that juries should be a fair cross section of the
community. Here, both sides got to use their strikes and there is no real harm to a juror who is excluded
just bc some party thought they were not a sympathetic juror.
United States v. Virginia (1996)
o Facts: VMI state college in VA whose purpose is to create citizen soldiers though it is not a military
academy. Only open to men. US brings lawsuit against VA saying this is unconstitutional. VA suggests
creating another school for women. State argued that this was ok bc it served the important government
interest of keeping a diversity of education methods, & VMI’s unique methods would have to be
drastically changed if women were let in.
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o Held: Unconstitutional; excluding women from VMI violated equal protection and the women’s
facility did not fix it because it was not “separate but equal”
o Must have an exceedingly persuasive reason for gender classifications - & must be the real
reason – not a made-up reason
 VMI’s assertion that diverse education method was the reason was a sham
 VMI’s assertion that admitting women would drastically change the program also is not
sufficient interest – because it relies on sex stereotypes
o Some adjustments will be necessary for privacy in living arrangements
o Intermediate scrutiny justifications must be genuine and not invented post-hoc
 Court did NOT say it was inherently unconstitutional to have separate but equal single
sex schools – just said that here the women’s school would not be equal.
 VMI didn’t do anything to make the women’s program like the prestigious,
militaristic program at VMI
o Rehnquist Concurrence: a little worried about “exceeding persuasive” language (but it does come from
prior cases)
o Dissent: Should probably go back to rational basis for gender cases; even under intermediate scrutiny
VMI still passes bc the goal is education; long standing tradition of sending men to military school
In-Class Hypos:
o Suppose public high school has a men’s and women’s basketball team. Woman asks to try out for men’s
team and she is better than all the men on the team. Argues given she is that good it’s not equal for her
to play on the women’s team bc she gets more of a challenge from playing on women’s.
o Important gov’tl interest = insuring quality of athletic teams for men and women. Segregated
teams important otherwise you risk male dominance. Sacrifice one woman for good of all (if this
was allowed, prevents women’s teams from improving & progressing)
Nguyen v. INS (2001)
o Facts: Citizen Rule for Persons Born Outside United States & One Parent is a US Citizen
o Mother is Citizen: Child is Citizen, if mother had one continuous year in the US
o Father is Citizen: Blood relationship must be established by clear and convincing evidence; the
father must have agreed in writing to provide financial support for the schild; and while the child
is under 18, the child is legitimated, the father acknowledges paternity, or paternity is established
by a competent court.
o Law is challenged by a child born in Vietnam – Vietnamese mother & American father. Pleads guilty to
sexual assault on a child in the US, when removal proceedings start he says he can’t be removed bc he is
a citizen
o Issue: is the distinction between mother & father constitutional? [YES] (5-4 decision)
o Held: test is intermediate scrutiny; statute is substantially related to the interests; passed scrutiny
o First gov’t interest – ensuring that a biological child exists. Note that this is asserted for the
first time in the opinion of the court – but VMI court says you can’t do this kind of
hypothesizing in the course of litigation.
 Here the use of gender specific terms takes into account a biological difference between
the parents. No woman is unaware they have a child, whereas many men are unaware
o Second interest – ensuring that the child & citizen parent have some real, everyday
connection
 Mother will always have an opportunity to foster this connection, whereas fathers don’t
always have this. Doesn’t make sense US citizenship should be so casually acquired (a
lot of servicemen sleep around and father children)
o Dissent: should have general requirement that fathers & mothers have to prove that they are the parent
of the child. Not clear meaningful ties btwn father & child is meaningful at all or that statute is achieving
this interest.
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Sessions v. Morales-Santana (2017)
o Facts: Citizenship Rule for Persons Born Outside US and One Parent is a US Citizen
o Mother is a Citizen: Child is Citizen, if mother had one continuous year in US
o Father is Citizen: Child is citizen if father lived in the US for at least 5 years, two of them after
the age of 14
o Challenged under 5th A; argues mother rule should be applied to everybody.
o Held (Ginsburg): Statute unconstitutional bc it is based on stereotypes about mothers & fathers.
o Relevant test is intermediate scrutiny
o Difference between Sessions & Nguyen
 Nguyen turned on whether the person is present at birth. By contrast, this is a
distinction about residency requirements. There’s no reason to think there is any
difference between men & women when it comes to that.
o Note: Nguyen is NOT overruled
o Gov’ts argument for this distinction:
o 1) Ensuring connection to the child: rejected bc relies on stereotypes about mothers & fathers
o 2) Ensuring statelessness: rejected bc if we’re worried about statelessness, why are we only
worried about it for the children of unwed fathers but not unwed mothers
o What is the appropriate remedy?  Ginsburg says extending unwed mother benefit to the
challenger would so effectively rewrite the immigration law as to be improper. Would make
narrow exception to law become the main rule which is not what congress would have wanted. We
will use the Father rule to apply to everybody, meaning this challenger still loses
o Scalia dissent: should restore to rational basis
Gender Wrap Up
o What’s substantial & what’s important under intermediate scrutiny isn’t clear
IV. CLASSIFICATIONS DISADVANTAGING ALIENS
Background
o The 14th A notes that all persons born in the US are citizens – which suggests differences between
citizens & noncitizens
o Privileges & Immunities Clause also says can’t abridge privileges of “citizens”
o BUT – Equal Protection clause uses “persons”
o So, clear that it extends to all persons, but bc beginning of the amendment makes distinction, it
shows that it is just a matter of where we draw the line.
Graham v. Richardson (1971)
o Facts: challenge to AZ law that limits welfare benefits to citizens or noncitizens who have been in the
US for 15 years & a PA law that gives benefits only to citizens
o Held: These laws violated Equal Protection because it has long been decided that the EPC applies
to aliens as well as citizens
o Classifications based on alienage are inherently suspect & subject to close scrutiny
o State wanting to save money/limited welfare benefits for own citizens is impermissible bc
violates strict scrutiny – especially when noncitizens pay taxes
o Federal gov’t excludes people who are unable to support themselves, but it says nothing about if
they become needy once they get here
o For states to distinguish between citizens & noncitizens interferes w/ the federal gov’t
prerogative to who it lets into the US
o Court has said that this is the closest thing to race where strict scrutiny is governing test
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Bernal v. Fainter (1984)
o Facts: resident alien in Texas native from MX who works as a paralegal & applies to become a notary
public. TX law requires notaries to be US citizens
o Held: law is unconstitutional
o Reaffirms test is strict scrutiny
o Political function exception to strict scrutiny – a limited exception – noncitizens can be excluded
from positions that are intimately part of self-gov’t (police officers, probation officers, etc.)
o Political Function Exception Test
o 1) the classification must be specific & not substantially over or under inclusive
o 2) it may be applied in the particular case only to persons holding state elective or important nonelective executive legislative, & judicial positions, those who perform functions that go right ot
the heart of representative gov’t
o Question: is being a notary public one of these political function exceptions? [NO]
o Notary public doesn’t go to right of the heart of representative gov’t
o Noncitizens can become lawyers
o Thus, ordinary strict scrutiny test applies then & this fails under strict scrutiny
o Political Function Test
 States May Require Citizenship for:
 State May Not Require Citizenship
 Governor
 Lawyer
 Legislator
 Civil engineer
 Judge
 Notary Public
 Mayor
 Janitor
 Police Officer
 Cashier
 Probation Officer
 Building Inspector
 Public School Teacher
o Note: none of the positions on the right are elected whereas some on the left are
o All of the people have the power to order people to do things
o Larson says the best thing we can do is look to what the job is closest to, the set of jobs on the
left or the right
Matthews v. Diaz (1976)
o Facts: Cuban refugees apply to be a part of Medicaid. Are denied bc statute says you have to be either a
US citizen or have continuous residence in the US for 5 years or be granted permanent residence.
o Held: Distinction upheld
o Aliens are not necessarily entitled to all the advantages of citizens. Congress has the power to
make rules that would be unacceptable if applied to citizens
o Deference bc of Congress’s traditional role in immigration  rational basis review
o Differs from Graham because this is the federal gov’t. Graham was intruding on federal
immigration prerogatives.
 Congress can make distinctions w/ respect to citizenship while states cannot
o Alien classification is one of the only areas where Equal Protection is different for state and
federal.
 State distinctions = strict scrutiny
 Federal distinctions = rational basis
V. OTHER CLASSIFICATIONS
Classifications Involving Non-Marital Children
Lalli v. Lalli
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o Facts: Under NY law a non-martial child can recover from a father if no will was made but there were
proceedings that had to be done in the first two years after their birth. P had a notarized document where
the father had declared P as his son – claimed it is not fair that the marital children get the estate & he
doesn’t. Argues this should be enough to inherit. Claims violates EPA bc treating him differently than
his other children who are marital
o Held: law upheld
o 3 justices would apply intermediate scrutiny  Here, YES. Important state interest = administering a
state properly; difficult to know of non-marital children (may come out of the woodworks years later)
o given these problems, the law is substantially related to administering the state properly even if it
may work unfairly in individual cases
o 2 concurring justices would uphold the law on broader grounds
o Dissent: this is a very narrow means to prove paternity
Clark v. Jeter
o Facts: PA law under which illegitimate children have to bring suits to establish their paternity w/in 6
years of their birth to get child support
o Opinion (unanimous): Standard is Intermediate Scrutiny
o Invalidates the PA law – doesn’t meet intermediate scrutiny.
Distinctions Based on Mental Disability
City of Cleburne v. Cleburne Living Center
o Facts: House proposed to be a group home for the mentally challenged but the city denies a special use
permit. Under the city permit you had to get a special use permit for hospitals for the feeble minded &
therefore the home needed a permit. Permit was denied bc all the neighbors objected.
o Issue: should this classification count as a subject class?
o Held: This is not a subject class & the relevant test is rational basis
o Mentally retarded have reduced ability to cope with and function with the everyday world. They
are thus different in relative respects. This is a relevant distinction upon which a state can act.
Legislation is in a far better place than courts to deal w/ this
o No evidence of antipathy or prejudice against the mentally retarded. In contrast, gov’t has done a
lot to protect them
o No evidence that medically retarded are politically powerless given that legislatures have been
responsive to their needs.
o Slippery slope argument: if we were to recognize a suspect class here, what about other groups
such as the aging, the physically disabled, mentally infirmed, etc.
 Note that this argument is dicta, but it is strong dicta.
o However, this statute fails the rationale basis test.
 City doesn’t require permits for other group homes. None of the reasons stated for this
are rationally related to the asserted interest.
o Rational Basis + Test? Two Possibilities:
 1) If a city’s action is driven by irrational prejudice, irrational prejudice is not rational &
therefore it fails rational basis
 2) Or this is rational basis +
 using rational basis in a different way than what is typical of rational basis tests
o Dissent: ordinance would surely be alright under the rational basis tests under economic regulation
Hypos:
o Suppose state passed a law saying that any contact with a person with an IQ below 70 is voidable within
6 months of entering into it. Concern would be ripping someone off.
o Suppose a state said that an IQ below a certain number can’t serve on a jury?
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o Likely constitutional bc would be unconstitutional for defendant if person on jury can’t process
evidence
o What about voting? If person not competent to stand on a jury, should they be allowed to vote?
o Court likely would want legislation to work itself out and trust legislation to not be too horrible
o Standard of review for physical disabilities is rational basis
Classifications based on Sexual Orientation
Romer v. Evans (1996)
o Facts: Ordinances banning local businesses from discriminating on the basis of sexual orientation. In
response Colorado constitution has an amendment suggested w/ the effect that all the local ordinances
are repealed & can’t be reinstated.
o Colorado Amendment 2
o “Neither the State of Colorado, through any of its branches or departments, nor any of its
agencies, political subdivisions, municipalities or school districts, shall enact, adopt, or enforce
any statute, regulation, ordinance or policy whereby homosexual, lesbian, or bisexual orientation,
conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any
person or class of persons to have or claim any minority status, quota preferences, protected
status or claim of discrimination”
o effect of law: all of ordinances repealed and all legislative actions at any level designed to protect
gays and lesbians are prohibited.
o Group of plaintiffs argue this violates the Constitution
o Held: SC invalidates the law
o Opinion by Kennedy: uses rational basis standard
o The amendment is singling out & imposing a disability on a single named group
o The sheer breath & the reasons offered for it is inexplicable except for hatred – it lacks any
rational basis
o Technically rational basis, but it seems like something else is going on here.
 Looks like the test in Cleburne
o Dissent (Scalia): describes this as a culture war.
o Court should leave the culture war in the hands of the democratic process.
o All this law does is prevent homosexuals from getting special treatment, doesn’t harm them in
any way.
o Assuming Bowers is still the law & you can still punish a person for engaging in gay conduct
then surely a state can discriminate
o This is based on hatred and that’s okay – moral disapproval of homosexual conduct is fine.
State Cases
 Key Events Pre-Windsor
o 1993 – Baehr v. Lewin (Hawaii): marriage bans subject to strict scrutiny as gender discrimination
under state constitution
o 1996 – Defense of Marriage Act (DOMA): federal gov’t will not recognize same-sex marriage;
state not required to recognize same-sex marriages form out of state
o 2003 – Lawrence v. Texas: reverses Bowers; states cannot criminalize gay sex
o 2004 – Goodridge v. Dept. of Health (Mass.): Ban on same-sex marriage violates rational basis
test under Massachusetts Conx (wave of anti-SSM measures enacted thereafter)
o 2008 – In re Marriage Cases (Cal.): Sexual orientation is subject to strict scrutiny under
California Constitution. Reserving the term “marriage” for opposite sex couples fails strict
scrutiny.
o 2008 – Proposition 8 amends California Constitution to prohibit same-sex marriage.
 In re Marriage Cases (2008)
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

o Facts: “Domestic Partnership” granted rights of marriage w/o calling it “marriage.”
o Argument: Both men & women are prohibited entering into marriages w/ members of the same
sex. Does not look at sexual orientation, only looks at gender  therefore, intermediate scrutiny
o Majority
 Sexual orientation is a suspect class & thus subject to strict scrutiny under CA Conx
 Reserving the term “marriage” for opposite sex couples fails strict scrutiny
 Test for suspect class
 (1) Historic discrimination on basis of the trait
 (2) Trait has nothing to do with ability to contribute to society
 Not looking at political power or immutability (whether sexual orientation can be
changed or not) like Scalia thinks we should
In response to In re Marriage Cases, Prop 8 amends CA Conx to prohibit same-sex marriage
Then Prop 8 is challenged in Federal Court
o Judge Walker in SF upholds challenge
o 9th Circuit affirms district court’s ruling
o CA AG & Governor decide to follow Judge Walker’s ruling
o USSC decides 5-4 that then no one had standing to appeal the 9th Circuit’s ruling
States have the authority to define marital relationships & DOMA goes against legislative & historical
precedent by undermining that authority
United States v. Windsor: two women were married under NY law but weren’t married under federal law.
One died & Windsor brought case for marriage exception to estate tax.
o At issue is the provision in DOMA that deals with federal recognition of same sex marriage
o Issue: does the federal gov’t have to treat as married the same couple a state treats as married
 Held: SC strikes down DOMA
o DOMA is an unusual departure from federalism principle since marriage has been the grounds of
states (generally federal gov’t isn’t regulating marriages)
o But, this can be decided on basic due process principles and not federalism principles.
o The law’s principle purpose was to demean the persons who are in a lawful same sex marriage; a
stigma on their marriage
 Humiliates children being raised by same-sex couples
o No language of what test is used here  Might be rational basis
o Larson says this looks like Rational Basis Plus
 Dissent: This ruling does not resolve the main question in this case
o DOMA isn’t based on animus, it did no more than codify a concept of marriage that was never
questioned previously
 After, lower courts….
Obergefell v. Hodges
 Facts: (Among other Ps) Obergefell lived in Ohio & his partner was dying. They flew to MD & got
married & his partner then died several months later & Obergefell sued Ohio to be recognized as a
surviving spouse.
 Majority: Love wins = Court sides with the Ps
o There are no differences b/w same sex & opposite sex unions w/ respect to the principles of
liberty & equality in the 14th A
 Kennedy: good result, bad writing
o No argument about strict scrutiny or gender equality
o Kennedy loves liberty not equality
o Due process argument
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

Dissent: same-sex marriage may be good & fair policy but the Conx doesn’t address it
o Roberts: similar to Lochner; seems equally applicable to plural marriage
What’s the standard here?
o Maybe strict scrutiny bc Kennedy says “fundamental”
Sexual Orientation Review
 Still don’t have answer as to whether orientation is a suspect class
 Romer seems to show rational basis plus
 California holds it to be strict scrutiny
 Ninth circuit holds it to heightened scrutiny
VI. FACIALLY NEUTRAL LAWS
Intro
 Facially neutral laws do not on their face distinguish on the basis of a suspect class
 Instead distinguish on basis of things that are normally rational basis
 Law NOT being applied in a discriminatory way – problem is when you apply the law correctly, there is
a disparate impact on a certain class.
Facially Neutral Laws Framework:
 If P cannot show a discriminatory purpose, test is rational basis.
 If P shows a discriminatory purpose was a motivating factor, burden shifts to the gov’t to show it
would have taken the action anyways. If gov’t meets this burden, test is rational basis.
o If gov’t cannot show it would have taken the action anyways, law is treated as if it were
discriminatory on its face (e.g. strict scrutiny for race/intermediate scrutiny for gender, etc.)
 Constitutional Challenges for Invidious Discrimination Require Discriminatory Intent
 Claims under the Equal Protection Clause are NOT the same as Title VII.
o Laws that are facially neutral are not invalid just because they cause a disparate impact – unless
intent was to discriminate.
Washington v. Davis
 Facts: a higher percentage of black applicants than white applicants failed a qualifying test administered
by the DC Police department. Some of the unsuccessful black applicants claimed these effects
constituted unconstitutional discrimination against them.
 Majority: Court decides against Ps
 Constitutional challenges to facially neutral laws require discriminatory intent
 Disparate impact does not establish discrimination. But, we can use disparate impact & other
circumstantial evidence as a relevant pieces to proving intent.
o If we accepted the contrary argument – that disparate impact laws violate equal protection – then
that would invalidate all sorts of tax, benefits, licensing laws that are more burdensome to poor
blacks than the affluent white
 Bc white families on average have more money – than any sort of law or service
requiring a fee would be more burdensome on minorities
 Major difference btwn Equal Protection & First Amendment analysis
o Court doesn't look at purpose/intent for First Amendment – not going to invalidate a law just bc
legislators had a bad purpose for enacting it.
 But, in Equal Protection we do.
 If Ps were able to show that the station was using the test for a discriminatory purpose,
then would be treated as a discriminatory law.
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Discrimination only needs to be a motivating factor, but must be at least that.
Arlington Heights
 Facts: The respondent applied to the Petitioner for rezoning of a parcel from single family multi-family,
low-income housing. The rezoning was denied & respondent sued citing racial discrimination.
 Majority: court upheld the denial
o Court confirmed that P only needs to show that discrimination was a motivating factor – & that
can do that with circumstantial evidence such as:
 A) Historical background of the decision
 B) Sequence of events before the decision
 C) Make-up of the decision making body
 D) notes from the decision making body
o Analysis: but here, there was no evidence that there was any discriminatory intent.
 Was more based on interest in preserving property values of a single family home
neighborhood.
 And, city only adhered to a preexisting policy of using buffer zones for multifamily
housing. Didn’t do anything out of the ordinary here
Motivating Factor Framework:
 If P can’t show at least a motivating factor  no claim
 If P can show that discriminatory purpose was a motivating factor, the burden shifts to the gov’t to show
that it would have taken the same action anyway.
o A) If the gov’t meets this burden, the test is rational basis review.
o B) If the gov’t does NOT meet this burden, the law is treated as if it were facially discriminatory.
o Ex: strict scrutiny for race; intermediate scrutiny for gender
Equal Protection claims must be “bc of” an impermissible characteristic; not just “in spite of”
 Knowingly vs. purposefully (aka intent!)
Personnel Admin of Mass. v. Feeney
 Facts: Feeney challenged the state’s rule that provides a hiring preference to military veterans & this
disproportionately affected women
 Majority: court upheld the law bc there was no discriminatory purpose
o A gender neutral statute that adversely impacts on egender doesn’t violate the Equal Protection
Clause of the US Constitution if it doesn’t have a discriminatory purpose & it doesn’t actually
classify one gender
o Mental States
 Purposefully
 Knowingly
 Recklessly
 Negligently
Hypo:
 Suppose CA state legislature, 1/200 had a discriminatory purpose but the governor did not
o If we could show that 1 person had a discriminatory purpose then burden would need to shift to
the government to show that they did it anyways
o They would likely be able to show that because only 1 person had this intent, they would have
enacted it anyways
 What if legislature had no discriminatory purpose but the gov’t did?
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o He says “I’m doing this because it’ll disproportionately affect Mexican-Americans”  gov’t
would not have been able to show that governor would have taken the action anyways, so
wouldn’t have been able to show that it would pass anyways
Under federal law it used to be a very different penalty for crack cocaine than powder cocaine.
o Practical effect: more African Americans punished than whites
o On its face, that disparate impact isn’t enough to establish a violation.
Suppose gov’t said 11/21 of the African American delegates voted for the distinction. Is this enough to
defeat the claim?
o No, you can’t say just bc African American delegates voted this way that you can’t have a
discriminatory intent. Casteneda case
o You cannot assume that based on the race of the decision maker that they do not have the
prejudice against members of their own group.
Can avoid problems by giving race/gender impact statement
Discriminatory Intent can be shown thru Circumstantial Evidence
Courts can look at many factors that together suggest discriminatory intent.
 Rogers v. Lodge: Burke County’s population was 53% black, but the voting population was only 38%
black. Burke County used an at-large voting system/winner take all – so the majority white voting
population was always able to win. There had never been a black elected official there. Black voters
sued, alleging that at-large voting system diluted the voting power of black citizens & was maintained
for invidious purposes.
 Majority: the law had been maintained for discriminatory purposes despite not being set up for that
reason
o If multi-member district is operated as a means of restricting minorities, they are
unconstitutional.
o Here, DC made factual findings that the process was being maintained for discriminatory
purposes.
o Findings of fact are reviewed on appeal for clear error – this is very, very hard to achieve.
 Dissent: Evidence is not sufficient to show discriminatory intent – the dissenters wanted a smoking gun.
o Here, all they had was circumstantial evidence. (but Larson says there was a lot)
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Hunter v. Underwood: AL 1901 constitution convention – disenfranchised people who were convicted
of a felony of moral turpitude. The law was challenged, claiming that it was enacted to intentionally
disenfranchise black votes.
Held (unanimous): Court invalidated law bc of its discriminatory origin
o There was overwhelming evidence that white supremacy ran rampant at the convention –
without racial motives the disenfranchisement would not have happened
o AL did not show that they would have adopted the law anyways
Takeaways from Rogers & Hunter
 Good laws can go bad (Rogers) but bad laws don’t become good over time – once you have the taint of
a racially discriminatory purpose on the way then it becomes invalid (Hunter)
VII. AFFIRMATIVE ACTION & PREFERENCES BASED ON GENDER OR RACE
A. GENDER-BASED AFFIRMATIVE ACTION
 Affirmative Action policies based on gender are gender classifications that must pass intermediate
scrutiny & be backed by an exceedingly persuasive reason for existing.
Mississippi Univ. for Women v. Hogan
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Facts: Miss. has a female only university which operates a school of nursing. A male student could
attend classes as an auditor but not academic credits.
Held (5-4): policy unconstitutional under intermediate scrutiny
o Subject to intermediate scrutiny bc distinction based on gender
o State’s argument: purpose of school is meant to be compensatory affirmative action to make up
for what has happened in the past  Court says this doesn’t make sense. Most people who
earned nursing stereotypes were owned by women. Moreover, policy isn’t substantially related to
objective.
Dissent: would uphold the program; this school was created to expand opportunities for women
o Heightened equal protection wasn’t meant to apply to this kind of case
Hypo:
 What if school’s policy is to give priority to men in order to make nursing profession more diverse 
might be a state interest bc of the physicality aspect (women can’t move everyone); gender balance
might be important state interest.
B. RACE-BASED AFFIRMATIVE ACTION
 Affirmative action policies are not per se unconstitutional.
 The relevant test for race-based affirmative action is strict scrutiny.
o If it passes strict scrutiny, universities can consider race as one of many factors in admission
 BUT – CANNOT use racial quotas/set-asides under strict scrutiny
 First case was dismissed as moot but J. Douglas’s dissent language adopted in future cases
Regents of the Univ. of Cal. v. Bakke (1978)
 Facts: Bakke, a white applicant to the UC Davis Med School (had 100 seats but who reserved 16 seats
for minorities), sued the university, alleging his denial of admission on racial grounds was a violation of
Equal Protection Clause. Special admissions program required much lower stats for admission (for
remaining 16 seats)
o CA SC rule in favor of Bakke
 Opinion of the Court by Powell: the Powell opinion that has been accepted as the holding of the court
(even though no one else signed on it) set up strict scrutiny as the test for all racial classifications
remedial or not
o Special admission program is unconstitutional but race may be considered as a factor in
admissions process
o Although race may be a factor in determining admission to public educational institutions, it may
not be a sole determining factor
o To get a certain percentage of minorities is not a compelling state interest. Neither is trying to
remedy general past discrimination
o But having a diverse student body is the compelling state interest. Law still fails bc not narrowly
tailored – quota ruins it.
 4 Justices: violates Civil Rights Act
 4 Justices: passes intermediate scrutiny; sound basis for rule; remedying past societal discrimination
o doesn’t stigmatize any group of people
 End result: schools can consider race, but cannot use quotas
There must be particularized findings of past discrimination by the gov’t in a specific field to support any
affirmative action quotas
 Mere prior social discrimination is not enough
City of Richmond v. J.A. Croson Co.
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Facts: City of Richmond adopts a minority utilization plan. The prime contractors w/ who the city does
business are required to subcontract 30% of K to minority enterprises.
Held: 6 justices would invalidate the program, 3 would uphold.
o Plurality says that state racial classifications are particularly suspicious (more than fed gov’t)
strict scrutiny governs all racial classifications made by state and local government
o Richmond failed to have the type of detailed particularized findings it needed before enacting a
program of this sort. The claim that there has been past racial discrimination does not withstand
strict scrutiny. There is no direct evidence of this discrimination
o The plan failed to consider race-neutral measures that would encourage more minority
participation in the construction program
o Congress can do more than states can  states need to provide specific evidence
Dissent: this is a deliberate and giant step backward. Strict scrutiny is not the right test
Strict scrutiny is applied to all race-based classification, regardless of benign or remedial motive
 Adarand Constructors, Inc. v. Pena: Adarand Constructors, a low-bidding subcontractor denied a
contract on a federal highway project, sued the Secretary of Transportation, alleging that the federal
gov’t incentives to hire socially & economically disenfranchised groups/minority subcontractors denied
him equal protection of the laws (it’s a subsidy to induce the hiring of minority subcontractors)
 Held: Race classifications by the federal, state, or local gov’t is subject to strict scrutiny
o Extends the 14th A requirement to the states in Croson to the federal gov’t through the 5th A
o Namely, strict scrutiny is applied to all race-based classification, regardless of benign or
remedial motive
 Dissent by Thomas: There is no racial paternalism protection in the 14th A
o Against affirmative action bc they are harmful to the recipients of the program
Diversity in higher education is a compelling state interest bc it provides benefits to society in the form of
a diverse student body
 Grutter v. Bollinger: Law school required consideration of an applicant’s entire file and the law school
said they want to achieve diversity, specifically want to enroll a critical mass of students from groups
who have historically been discriminated against. Woman argues she is unconstitutionally discriminated
against bc had she been a different race, she would have gotten in.
o Issue: would the court accept diversity in higher education as a compelling state interest and if it
would find the programs at issue were narrowly tailored to achieve that interest
o Held: Court upheld the policy under strict scrutiny
 There is a suggestion that there are educational benefits that flow from a diverse student
body  compelling state interest
 This is NOT about correcting injustices that happened in the past
 Narrowly tailored: court repeatedly emphasizes that each application receives
consideration, and race is only considered as a plus.
 Strict scrutiny doesn’t require exhaustion of every race-neutral alternatives.
 Not going to make law school lower its admission requirements
o BUT – Court said bc racial classifications are so dangerous – they can impose only as long as
they are demanded = must have a reasonable TIME LIMIT (25 years – 2028)
o Dissent by Thomas: if the interest is a diverse student body, aren’t there other ways to make a
diverse student body?
 Use lotto or lower standards
 What’s the gov’t interest in having a law school?
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o Dissent by Scalia: against affirmative action (mainly bc it hurts white people); can’t discriminate
on the basis of race
In-Class Hypos:
 What’s the benefit of having a top-notch law school in Michigan if most students leave to practice in
other states?  could be a state pride thing and it’s a compelling state interest
Also cannot use a “points” system that automatically gives minority applicants a set value in one
category.
 Gratz v. Bollinger: student from an underrepresented group automatically receives 20 points towards
his or her overall score
o Held: this policy fails strict scrutiny
 Admission criteria based on race must be narrowly tailored to achieve a compelling
interest – here it hasn’t been narrowly tailored
 Race may be considered in an individual assessment, but not as a sole or contributing
factor for admission
 An admission system that grants for certain characteristics such as race is not an
individual assessment
o Dissent: strict scrutiny is inappropriate  test should be less strict
Overall Takeaway from Grutter & Gratz: schools can take race into account but they can’t explicitly decide
that race is any particular numerical weight.
Racial balancing is NOT a compelling state interest.
There are ONLY two compelling state interests in using affirmative action: (1) remedying past gov’tl
discrimination, & (2) having a diverse student body in higher education.
 Parents Involved v. Seattle School District: Seattle continued to use race as a level 2 tiebreaker for
deciding which high school a student will go to. The SC had unanimously decided that should should
reflect the community as a whole which could include buses students to achieve a segregated end.
Students argue it’s just like Brown
 Held: ALL racial classifications are subject to strict scrutiny. Only 2 gov’tl interests have been found to
be compelling: (1) the interest of remedying the effect of past intentional discrimination; and (2) to
achieve diversity in higher education
o (1) doesn’t apply bc Seattle was never subject to court-ordered desegregation decrees, so aren’t
trying to remedy discrimination by Seattle
o (2) Grutter doesn’t apply bc that was about the unique context of higher education (different
from elementary and secondary education).
 Grutter considered race as one factor, not the sole factor like it sometimes is here.
 Kennedy Concurrence: agrees the policies aren’t constitutional, but uncomfortable w/ Roberts majority
opinion. Kennedy thinks diversity is a compelling state goal even in elementary/second degree education
context. Doesn’t want to assign people to a race/label
 Dissent: Essentially says that Rehnquist would never have agreed to this. Would have said that school
districts can do this.
 Breyer Dissent: it is a cruel depiction of history to compare the plight of Linda Brown to Joshua
McDonald, whose request to transfer to a school closer to home was denied. Also the two cities are far
different.
 Larson’s notes: 4 votes for the idea that you can’t consider race at all; Kennedy is willing to consider it,
but has doubts about how it’s actually applied in a given case
Fisher v. University of Texas (Fisher I)
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Facts: In 1997 the Texas legislature enacted a law requiring the U of Texas to admit all high school
seniors who ranked in the top 10% of their high school classes – after finding differences btwn the racial
& ethnic makeup of the university’s undergrad population & the state’s population, UT decided to
modify its race-neutral admissions policy – the new policy continued to admit all in-state who graduated
in the top 10% of their high school classes & for the rest of the in-state freshman class the university
would consider race as a factor.
Held (7-1): Concludes that CofA applied the wrong standard.
o 5th circuit said would defer to university’s argument that this is a narrowly tailored method of
achieving diversity
o Under Grutter, you defer on the compelling state interest argument, but now on the narrow
tailoring.
o Strict scrutiny imposes on the university the ultimate burden of demonstrating that available,
workable race-neutral alternatives do not suffice
Ginsburg Dissent: the university had shown race-neutral alternatives would not work; would uphold
program
Fisher (II) (2016)
 Issue: Does the University of Texas’ use of race as a consideration in the admissions process violate the
Equal Protection Clause of the Fourteenth Amendment?
 Kennedy changes vote – and votes to uphold the program (although in Fisher I he voted against)
 Scalia dies
 Held (4-3): The race-conscious admissions program in use at the time of the suit is legal under the Equal
Protection Clause.
o The use of race as a consideration in the admissions process did not violate the Equal Protection
Clause of the 14th A.
o University of Texas’ use of race as a factor in the holistic review used to fill the spots remaining
after the Top 10% Plan was narrowly tailored to serve a compelling state interest. Previous
precedent had established that educational diversity is a compelling interest as long as it is
expressed as a concrete & precise goal that is neither a quote of minority students nor an
amorphous idea of diversity. In this case, the Court determined that the University of Texas
sufficiently expressed a series of concrete goals along with a reasoned explanation for its
decision to pursue these goals along w/ a thoughtful consideration of why previous attempts to
achieve the goals had not been successful. The UT’s plan is also narrowly tailored to serve this
compelling interest bc there are no other available & workable alternatives for doing so.
 Dissent Alito: UT didn’t meet its burden – what it was trying to achieve and whether it was narrowly
tailored to achieve it
Federal legislation addressing federally recognized Indian tribes are not racial classifications at all – they
are political classifications.
 It is just recognizing political units gov’t-to-gov’t
 Morton v. Mancari: congress passed the Indian Reorganization Act in 1934 which included a provision
that gave hiring & promotion preference to Native Americans for positions in the Bureau of Indian
Affairs
 Held: Unanimously upholds the Indian preferences
o This is not a preference for any person who is Native American, you have to be an enrolled
member for a federally recognized tribe. Therefore, it is a political classification and not racial,
thus it is viewed only under rational basis.
o Here, the preference is reasonably related to a legitimate goal
Big Take-Aways:
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What has been recognized as compelling for Affirmative Action
o Remedying past discrimination by the gov’t or entity at issue
o Achieving benefits of a diverse student body in higher education
What is not recognized as a compelling interest
o Remedying societal disadvantaged
o Not compensating past societal discrimination or injustices
VOTING
16% of the population can control senate
How to fix districting:
 Court intervenes
 Constitutional amendment
A. LEGISLATIVE DISTRICTING
 EPC demands substantially equal state representation for all people, of all places/races
 Must allocate representation on basis of population
Reynolds v. Sims
 Facts: Senate & House districts in Alabama. Ps alleged that the last apportionment of the Alabama
legislature was based on the 1900 federal census & that the population growth in the intervening six
decades has now made representation discriminatory against areas with fast-growing populations. So,
states had districts based on geography rather than population/census. Most states haven’t changed these
boundaries for a long time. So we didn’t have anything that looked like democracy - no majority rule.
This created huge districts & small districts with the same number of representation.
 Held: The right to vote freely for the candidate of one’s choice is of the essence of a democratic society.
o Cannot make certain people more powerful simply bc of where they live
o EPC demands no less than substantially equal state legislative representation for citizens of all
places as well as of all races
o One person one vote rule: each person gets one vote, can’t be diluted by having districts of
different numbers of representation
o Both houses of state legislature must be apportioned by the population
 Do not need to be absolutely equal, but needs to be as close to equal as possible
 Consequences
o Can draw these lines in a way to achieve certain results (gerrymandering)
B. RECOUNTING
Any system for counting or re-counting votes must be done under a unified standard within each state.
(pretty much limited to these facts)
 Bush v. Gore: Close election, came down to whoever won Florida would win the election. Called
Florida for Al Gore, but then shortly after called it for George W. Bush. Irregularities with this election:
butterfly voting ballots (led people to accidentally vote for the wrong person). People were also turned
away from voting bc they were “convicted felons” (except many weren’t). Mandatory state wide recount
 were told to look at the ballot and determine the intent of the voter.
 Held (5-4): ordered stay of recounts until can be heard
 Dissent: should continue to count the votes, no irreparable harm identified
 Case Argued & Opinion Issued
 Held (5 conservative justices): the Florida SC violated EPC by ordering state-wide manual
recounts w/o uniform standards for the recounts.
o Failure to include over-votes (ones that had 2 votes for President) should have also been
recounted
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o You can’t value one vote over another (one counting team might look at a hanging chad & say
that counts while another county team may not)
o Not enough time to do a proper recount bc Florida law requires that Florida’s recounts have to be
completed by Dec. 12.
Stevens Dissent: intent of the voter standard is used in a number of states; certainly no more incapable of
uniform application than beyond reasonable doubt standard
o 2 ways opinion can be read:
 1) court has suggested it would be very hard for judges to evaluate these ballots fairly,
casting cloud on people’s faith in justices
 2) it is the majority itself that has failed the rule of law – has damaged the faith in
impartiality of justices
Souter & Breyer Dissent: agree there is an equal protection violation – BUT the answer is to remand it
to the Florida SC, let them figure out the standard & do the recount
Arguments against Gore:
o SC intervening on Florida SC’s right to control their own election
Defenses of Bush v. Gore:
o The decision effectively ended a dispute
o Florida SC was creating a new remedy that Florida law didn’t apply for – all democrats maybe
doing it in order to benefit one candidate
EDUCATION
A. INEQUALITIES IN EDUCATION
Education is NOT a fundamental right & therefore the rational basis test applies
 San Antonio Ind. Sch. Dist. v. Rodriguez: Respondents brought a class action on behalf of parents &
students residing in poor school districts in Texas, alleging the State’s system of funding schools based
on local property taxes denies equal protection to students in poor districts.
 Plaintiff’s Arguments: discrimination based on wealth, which should be subject to higher scrutiny.
o Also argued that education is a fundamental right
 Held: Both of plaintiff’s arguments are rejected.
o Distinction btwn living in a wealthy vs. poor school district does not constitute a suspect class.
o Education is NOT a fundamental right
o Different from Roe bc this doesn’t cost money – court seems to be more likely to acknowledge a
fundamental right that is going to cost the gov’t a lot of money
o So apply rational basis – court says this is consistent w/ the long history of state & local control
of education
 Dissent: Education is a fundamental right – tied to 1st amendment rights to speech & association & no
rational relationship btwn Texas’ purposes and the means employed
Hypo: Suppose a city had no public schools at all. Would this be ok?  No, taking education away from an
entire group of people would be unconstitutional
 What if someone pointed out that in CA the state spends $7,000 for people but in Nevada the state
spends $4,000 for people  this is fine, the text of the 14th A gives the right to states to decide how
much they want to spend on education. State to state won’t have arguments for EPC violation.
Cannot exclude children of illegal aliens from elementary or secondary education
 Court cherry-picks an entirely new/unprecedented level of review here – doesn't fit into framework  to
be rational, must further some substantial goal.
Plyler v. Doe
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Facts: TX provides free public education to its citizens and children of non-citizens legally admitted ot
the US. Does not provide education to undocumented children. School in this case allowed nondocumented children to attend if they paid.
Held: This is unconstitutional
o Court suggests that it’s probably constitutional from a state to withhold benefits from someone
who entered the state unlawful, but suggestion that children are different
o Children have absolutely no control whether they’re undocumented or not, so can’t punish them
for their parents’ misconduct
o Cannot be considered rational unless it furthers some substantial goal of the state (a lot of people
think this is a one-time only result; unclear it has any vitality outside the particular facts of this
case)
o 3 interests offered by the state: 1) protected state from influx of immigrants; 2) children present
special burdens than other children; 3) these children are less likely to remain in the US than
other children
 these interests are not substantial enough to be rational
Concurrence: Different from San Antonio bc it involves the complete denial of education to one group
of people.
Dissent: court should not assume policy-making role, but agree it’s a terrible law, it’s just not squarely
forbidden though
School board can impose a fee for buses
Kardmas v. Dickinson Public Schools
 Facts: school charged a fee of $97 to ride the school bus.
 Held: $97 busing fee is constitutional
o Wealth classifications are not subject to heightened scrutiny, education not a fundamental right,
therefore rational basis review applies
o Constitution doesn’t require school buses at all
 Dissent: This is equivalent to imposing a fee on education itself; hurts poor people & creates subclass
Hypo: could schools force students to pay for textbooks?  books are an iatrical part of education (not clear
answer how court would deal w/ this though bc a lot of this is dealt with by state law)
APPLICATION OF THE CONSTITUTION TO PRIVATE CONDUCT
(THE STATE ACTION DOCTRINE)
Intro
 Constitution (and Amendments) only apply to the gov’t – NOT private conduct
 However, there are some cases that are sort of in between
 What type of private conduct might be attributed to the state?
o This is really the FIRST question in all con law analysis: Does the Constitution even apply to
this case??
 Basic rule is that Constitution doesn’t govern unless the private action is supported by state authority
o There is some argument that all private conduct is subject to state action doctrine bc all conduct
is allowed/not allowed by the law but this can’t be right
 It is very hard to figure out; not an intuitive area of the law
o There has been a trend toward not finding state actions since the 1970s
Constitution does not bind private actions.
Civil Rights Cases (remains black letter law of the day)
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Facts: Set of consolidated cases brought by African Americans who were denied access to Inns, theaters,
etc. under Civil Rights Act while Ds argued that the Civil Rights Act was unconstitutional – they
shouldn’t have to let people into their business they didn’t want to.
o Civil Rights Act of 1875: “All persons within the jurisdiction of the US shall be entitled to the
full and equal enjoyment of the accommodations, advantages, facilities & privileges of inns,
public conveyances on land or water, theaters, & other places of public amusement; subject only
to the conditions & limitations established by law, & applicable alike to citizens of every race &
color, regardless of any previous condition of servitude”
Held: Court invalidated CRA
o Court looks at 14th A and said what is prohibited is state action of a particular character, it does
not bind individuals (only limitation on states, not private actors)
 Section 5 doesn’t make Section 1 applicable to individuals  only provides modes of
redress to enforce states from violating these laws
o 13th A gives Congress power to enforce abolition of slavery (prohibits private conduct  private
person cannot keep a slave)
 Civil Rights Act doesn’t fall under 13th A power. Not intended to adjust social rights, but
only the fundamental rights.
Harlan Dissent: Majority opinion is narrow & is scarcely just to say that blacks have been a state
favorite; Congress has power to enact CRA
Court enforcement of private contracts that restrict real property sales by race constitutes state action.
 Racially restrictive covenants are not unconstitutional – so long as they are private agreements that
people voluntarily agree to participate in. BUT, they cannot be judicially enforced.
Shelley v. Kraemer
 Facts: Racially restrictive real estate covenant – owners can’t sell the property to non-whites – some
neighborhoods then remain totally white. Federal Housing Administration drafted model restrictive real
estate covenants. Old owner is willing to sell to the Shelley family & ignore the covenant. Kraemer (a
neighbor) decides to sue.
 Held: Shelley’s win unanimously
o A private racially restrictive agreement alone would not be unconstitutional
 14th A doesn’t apply unless states get involved (such as by enforcing the covenants)
o Here there wasn’t just a private agreement, there was enforcement of the covenant by state
courts, which constitutes state action.
 State courts are subject to the EPC
o This ruling hasn’t gone beyond racially restrictive covenants – but may apply to
gender/religious/political restrictions in real estate covenants (according to Larson)
o Also race may be different from other areas bc consequences are so horrific, real property might
be different also
o Case doesn’t squarely state the limits, though.
 Hypo: suppose there’s a commercial landlord in downtown Davis who owns the property of the Avid
Bookstore; sees that the store is selling Nazi books; landlord won’t renew the lease & evicts tenant 
not allowed under Shelley; different bc not racial classifications
Trusts & Preemptory Challenges
o If the trustee is a state entity:
o Still bound by the constitution in administering that trust
o Can’t act in a discriminatory manner no matter the text of the trust
o Suggests Shelley v. Kraemer doesn’t extend to enforcement of a will
o Private litigants & criminal Ds constitute state actors at least in terms of preemptory challenges to jurors
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A. IDENTIFYING STATE ACTION
There is no precise formula for determining state action (Burton)
o Where state & private operations are so entwined that they are likely to be seen as only state
actors, satisfies state action such that can bind the private party.
Burton v. Wilmington Parking Authority
o Facts: Appellant brought an action under the EPC of the 14th A claiming that he was discriminated
against bc the Park Authority & the Eagle Coffee Shoppe refused to serve him in their restaurant based
solely on his race. P claims there is state action sufficient to bring a 14th A claim as the Eagle Coffee
Shoppe leased its restaurant space from the City & the restaurant was attached to the Wilmington
Parking Authority, a city owned parking garage
o Held: Coffee Shoppe is bound by the 14th A
o It is impossible to have any clear definition of when there is state action and when there isn’t;
here, the shop is in a public building
o By the Authority’s inaction (failure to ensure racial equality in the lease etc.) it must be
recognized as a joint participant (with the state) in this activity
o This isn’t necessarily a broad rule governing every state leasing agreement
Hypo: can Starbucks on campus turn down serving someone with an “I heart Starbucks shirt”?  Burton would
likely rule
o Student who leases a dorm room from UC Davis a state actor?  Burton was a commercial business
designed to be open to the public, whereas a dorm room isn’t
Mere receipt of state license does not establish state action or affirmation sufficient for state action.
Moose Lodge No. 107 v. Irvis
o Facts: Moose Lodge was limited to white members only. Member brought a black guest to the lodge, the
lodge refused to serve him. Guest brings a challenge that moose lodge violates 14th amendment.
o State argument: moose lodge was granted liquor license by state of PA, thus it is a joint
o Held: No equal protection violation
o State licensing regulation over a particular private entity is not enough to rise to the level of the
actions of the private entity to be considered state action for regulation under the 14th A
 Everyone receives some benefit from the state
 Nothing here to suggest there was any symbiotic relationship w/ state. Bar and land upon
which it sits is owned by D
o No connection btwn limiting # of liquor licenses and discrimination by state
o Dissent: Would go along w/ majority if liquor licenses weren’t limited.
State action requires a SUFFICIENTLY close nexus btwn the state & a regulated action (aka the private
party’s decision) so that the actor can be treated as the state itself.
Jackson v. Metropolitan Edison
o Facts: Private company subject to extensive state regulation bc it held a certificate public convenience
from the Penn. Public Utilities Commission empowering it to deliver electricity to a specific area. DP
argument that I should have some type of procedure to contest this before utility company cuts off
service
o Held: must be a sufficiently close nexus btwn the state and the challenged action of the regulated entity
so that the action of the latter may be fairly treated as that of the state itself
o Connection btwn state & specific action that organization took? Have to show specific action
taken by private party is tied to the state
o Here, there is no connection btwn state & utility’s determination for cutting off service
o Dissent: What if utility cut off plaintiff bc of her race? Nothing in court’s position says otherwise
o Hypo: can electrical utility company cut off service if you subscribe to porn? Larson says plaintiff would
lose until Jackson, because no state nexus could be shown here, so they could probably do this under
Jackson.
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B. ISSUE OF PUBLIC FUNCTION AS POTENTIAL STATE ACTION
There are certain core functions that gov’t does that private parties don’t do
o Cannot delegate core gov’t functions to private parties just to avoid constitutional problems
o Jackson – utility is not a public function
Public function only applies to tasks that have been exclusively reserved to the states
o Settling creditor/debtor disputes is not a public function & therefore delegating it to a private party is not
state action.
Acquiescence/inaction is not state action
Flagg Brothers Inc. v. Brooks Brentwood Academy
o Facts: P evicted & the landlord arranged for P’s things to be stored in D’s warehouse. D then claims P
hasn’t paid as she was supposed to. D then sells her property to gain a refund. She doesn't’ have a
procedure to contest whether her balance was overdue. Argument is that D violated the DP & EPC of
the 14th A. (didn’t have an adequate procedure to contest whether her acct was really overdue)
o Held: the only issue is whether the action of the warehouse can be fairly attributed to the state of NY and
it cannot
o Only applies to functions which are traditionally reserved to the state
o Settling creditor/debtor disputes is not a public function & therefore delegating it to a
private party is not state action.
 Offering no opinion to whether this same reasoning responds to education, police, etc. –
will decide those on an ad hoc basis. All we are deciding here is a debtor/credit debate
o Another argument that could be made that the state encouraged the sale bc of the statute they
have that allows this – court also says no to this argument
o There is a difference to acquiesce to a private action & an actual public action
o Dissent: claimed power derives solely from the state. The question is whether a state statute which
authorizes a private company to take away someone’s property w/o their consent allows them to do this
without any procedural protections
o Hypo: what if no law against murder & then people go around killing each other. Are the killers state
actors?  No bc the state hasn’t prohibited it
o What if state passes murder law that says only the state can kill people (including cops)? & then
a cop shoots someone?  State actor
o If a random person kills a private person?  not a state actor
o What if state adds onto statute saying that private people can kill other private people if they are
acting in self-defense and someone kills someone acting in self-defense?  No, bc of Flagg
Brothers.
o What if state decided that you had some good judgment in killing that person, so you get a
license to kill anyone you want and it won’t be treated as a murder? State actor bc more than
acquiescence. Violate equal protection.
o What if self-defense was only applied to you?  State action bc given something that looks like
a license
o What if state says if anyone kills Madison, they won’t intervene  State action that violates
equal protection
o Is education an exclusively public function?  not exclusive bc private schools
o What about fire/police protection?  private security so not exclusively public
o What about tax collection?  probably exclusively public
Brentwood Academy v. TSSAA
o Facts: Tennessee Secondary School Athletic Association – has both private & public high schools as
members & they provide the individuals who serve on the board. Puts the Academy on probation for 4
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years for breaking the recruitment rules. Academy sues the TSSAA for largely due process issues. Issue
is whether TSSAA is a state actor?
o Held: IS a state actor
o Not one fact/or circumstance sufficient to show state actions.
o Here, there is an entwinement – the state was entwined with the association bc the association
was composed of school (not private persons), 84% of schools were public, meetings held during
public school hours, most of the money funding the association came from public schools, etc. –
given these facts the court says that there is enough evidence
o Admits that this wouldn’t fulfill the public function test but that doesn’t matter bc this isn’t the
only test to determine station action
o No emphasis on nexus from Jackson case – don’t have to show a nexus btwn the state * the
decision to put the school on probation
 Enough to show you are entwined enough that all actions are attributed to one another
(kind of like Burton v. Parking)
Takeaways:
o Warren & Vincent Court more receptive to state action arguments
o Rehnquist court not as receptive, with Brentwood academy as exception
o Facts REALLY matter. Best you can do is analogize to existing case law
45 multiple choice questions (90 minutes)
3 fact patterns w/ multiple issues (only evaluate his hypothetical and answering that one specific question); use
cases and rationales/justifications  would those apply in this circumstance or something different
Thursday, May 3 1:30-2:30
May 4: 1:30-3
May 6 1:30-3
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