Constitutional Law II
Sullivan, 19th Ed.
Substantive Due Process, Equal Protection, Free Speech
Part I – Substantive Due Process/14th Amendment
Due Process Overview:

Substantive Due Process -> comes from our history, traditions, and the penumbra (the text itself
– Griswold)
 Sources:
o Text of first eight amendments - penumbra
o History/Tradition
 Examples:
o Reproduction (Griswold, Roe, Casey)
o Marriage (Loving, Obergefell)
o Family formation (Skinner)
o Sexual intimacy (Lawrence)
 Content:
o Bodily Autonomy
o Defining one’s existence
o Privacy
o Liberty
 What limitations based on government interest:
o Compelling state interest?
o No undue burden (abortion)
o Legitimate state interest – not just animus (moral disapproval)
 Carolene footnote (tabbed in binder), with my own writings
See highlights on page 508! (Interests protected by Due Process)
Two Camps on the Source of Authority for Substantive Due Process:
Side 1
Natural Law
Individual Right
Extra-Constitutional Source of Right
Source of Authority?
Side 2
Positive Law
Majority will
Text of the Constitution
A. Substantive Due Process and Privacy (Contraceptives)
Griswold v. Connecticut (CONTRACEPTIVES/ BODILY INTEGRITY) pg 510
CT made it a crime to use contraceptives to stop
Concurrence: (Goldberg) The right of privacy in
adultery. D was arrested for giving advice on
marriage is rooted in the “traditions and
using contraceptives.
collective conscience” of people and is therefore
a fundamental right. Things involving history and
Issue: Does the Bill of Rights contain an implied
tradition are protected.
right of privacy that permits use of
(Harlan) Privacy in marriage is not protected by
contraceptives by married people?
an implied right of privacy in the Bill of Rights, but
rather in the Due Process Clause of the 14th
Held: (Douglas) Yes
Amendment.
Reasoning: Distinguishes from Lochner because
all of this is grounded in text. Douglas looks at all
of the rights, and notes that the 9th Amendment
provides that there area additional rights, and
the Bill of Rights is non-exhaustive. We can add
things closely related to guaranteed rights.
The protected activities of each of his examples
(1st, 3rd, 4th, 5th Am.s) are “penumbras” that are
not specifically enumerated in the Const., but
instead represent various “zones of privacy” in
which the government cannot intrude.
(Incorporation)
(White) The law applied to married couples
deprives them of liberty without due process of
law as used in the 14th Amendment.
Dissent (Black) A Lochner argument… There is no basis in the Const for a right of privacy. Right of
privacy comes from the 4th amendment; unreasonable search and seizure. The 9th and Due Process
Clause should not be used to strike down state legislation the court believes violates “fundamental
principles of liberty and justice” or is “contrary to the traditions and collective conscience” of the
People.
(Stewart) The law is unwise, but it’s not the duty of the Court to strike down legislation with which it
disagrees.
The scope of “privacy” after Griswold is extended to all people, regardless of age or marital status
under Eisenstaedt and Carey (pg. 518). Matter of privacy, given right to make decisions regarding
bodily integrity. [Lochner and Griswold distinguished pg 517]
B. Substantive Due Process and Abortion
Roe v. Wade - Abortion
Texas restricts legal abortions to those “procured
or attempted by medical advice for the purpose
of saving the life of the mother.” Roe was a
pregnant single woman who brought suit against
Wade (TX official) on the grounds that the statute
was an unconstitutional restriction on her right to
obtain an abortion.
Held: Yes
Reasoning: (Blackmun) Regulation limiting a
“fundamental right” such as family planning and
bodily integrity must be justified by a compelling
state interest that is narrowly tailored to further
that interest. Here, the fundamental right
presented by the government was to limit “illicit
Issue: Does the constitutional right of privacy
sexual activity.” The two interests that can be
include a woman’s right to choose to have an
protected are (1) the health of the mother and
abortion?
(2) potential life. Potential life is compelling after
the first trimester. A state can prohibit abortion
after the first trimester, but can never prohibit
abortion that is necessary to preserve the health
of the mother. The privacy interest here
outweighs the government interests, because TX
prohibited all abortions. Total bans on abortion
are unconstitutional.
Concur (Stewart): The Griswold majority attempted to rely on other bases for its judgment than the
“liberty” interest protected by substantive due process. In the same way, the liberty interest at stake
in the present case is best supported by substantive due process provisions, rather than a vague right
to privacy like that outlined in Griswold.
Dissent (White): Due Process is Judicial Legislating. This should be up to the states. Not a
Constitutional right, but a policy determination that should be made by legislatures.
(Rehnquist): Wants a rational basis test, with a legitimate state objective rationally related to the law.
The majority is engaging in judicial legislation. Still thinks that this is not a valid state objective,
because it is not rationally related to a valid state objective.
Notes: State regulation of abortion from Roe to Casey

Maher v. Roe (pg 528) – The state can determine how to spend funds as it sees fit. Abortions
cost money, and the state doesn’t need to pay for it. It doesn’t violate due process rights.
o
States may choose to pay for pregnancy while choosing not to pay for abortions. They
can pick and choose like this. We have access to rights, but that doesn’t mean the
government needs to pay for it if we are too poor.


Ex. gov. doesn’t need to buy you a newspaper column if you’re too poor to
afford it, despite freedom of speech. Our access to rights =/= gov pays.
Harris v. McRae (pg. 529) – Law barred abortion payments, even when medically necessary. Law
upheld, because whether freedom of choice that is constitutionally protected warrants federal
subsidization is a question for Congress to answer, not a matter of constitutional entitlement.
Planned Parenthood of Southeastern PA v. Casey (Doesn’t overrule Roe) – pg 532
PP of PA brought suit against Gov. Casey
Reas: (O’Connor) Rule from Roe reaffirmed: (1)
challenging PA abortion law, specifically, the
woman has right to choose before viability and
informed consent and 24-hour waiting period
obtain w/o undue interference from state; (2)
before abortion procedures. All minors were
state may restrict after fetal viability as long as
required to get parental consent, while a married law exempts pregnancies that endanger woman’s
woman had to notify her husband of intent to
health or life; (3) state has legit interests from the
abort the fetus.
outset of the pregnancy in protecting the
woman’s health and life of the fetus.
Issue: Whether a state restriction on abortion
NEW TEST: Undue burden/substantial hardship.
that requires informed consent and a 24 hr
Spousal notification is an undue burden, giving
waiting period is unconstitutional?
husband too much power over the wife (matter
of liberty + equality). Waiting period and parental
Held: No, not unconstitutional
notification are ok, though, because not an
undue burden/substantial hardship.
Partial Concurrence: (Stevens) Stare decisis applies (see below)
(Blackmun): Wants a return to Roe, but glad not overruled. Too much change, but fine with it.
Basically rules with majority
Dissent: (Rehnquist) – still wants rational relationship test
(Scalia) – Rely on political process, not judicial legislation
Casey explained:
Majority: Don’t overrule Roe. Stare decisis concerns:
1. Only overrule Roe if unworkable
2. Reliance – people organize their lives around the rule – don’t pull the rug out from under them
3. Has the law or the facts changed? If not, don’t overrule
a. Majority also won’t overrule such a controversial decision like Roe
Dissent: “You yell enough, and the courts change their mind” diminishes the legitimacy of the judiciary.
This should be left up to the political process. Stare decisis needn’t apply here, because this is about
American values. Public opinion should not matter to SCOTUS. Should be a rational basis test.
Note: Partial birth abortion and HEALTH EXCEPTIONS

Stenberg v. Carhart (pg 540) – Casey requires abortion statutes to contain health exceptions
when the procedure is “necessary, in appropriate medical judgment, for the preservation of
the life or health of the mother.”
Gonzales v. Carhart (Partial Birth Abortions) – pg 541, and see Note 4 pg 540
Law banned partial birth abortion in the second
Reas: (Kennedy) The law prohibits a narrow,
trimester, where physicians dilated the cervix and specific type of partial birth abortion, and defines
pierced the baby’s skull, followed by suction.
the criminal offense involving performance of the
Physician who did a partial birth abortion sued
abortion with sufficient definiteness that ordinary
AG Gonzales, seeking to enjoin the law from
people can understand what conduct is
going into effect.
prohibited and in a manner that does not
encourage arbitrary and discriminatory
Issue: May Congress ban this specific type of
enforcement.
partial birth abortion?
Court wants to define a bright-line rule due to
infanticide concerns. Women will later regret
Held: Yes
what they’ve done and must be protected =
good enough state interest. Also, this law
doesn’t prohibit traditional abortions.
Compelling state interest = infanticide concerns
vs normal abortion
Not just protect life of the mother of potential
life of the fetus, but to recognize that sanctity of
life is compelling interest.
NEW COMPELLING INTEREST: Sanctity of life
(ethical concerns).
Dissent: (Thomas) No basis for Casey or Roe in the Constitution. Should’ve focused on Commerce
Clause. Neither parties or lower court raised the issue.
(Ginsburg) – Majority decision blurs the lines between pre and post-viability abortions. There is no
exception in the law, required by Carhart and Casey, to protect the health of the mother, and thus, is
unconstitutional.
C. Substantive Due Process and Marriage/Family Relations


Loving v. Virginia (pg 544) – law banned interracial marriage. Court strikes down law.
o
Freedom to marry arises from Due Process Clause of the 14th Am. Freedom to marry
who you want is a fundamental due process right.
o
Freedom to marry who you want is a long-recognized fundamental right via history and
traditions. This is a matter of privacy, autonomy, and liberty.
Zablocki v. Redhail (pg 544) – law barred you from marriage if you’re behind on child support
payments
o
Violates equal protection rights on the grounds of poverty. Deprives you of a right to get
married, which is a fundamental right.

Reproductive and family formation rights arise from Griswold and Roe – they’re
now extended to a right to marry (no longer just a privacy right, but a
fundamental one).

STANDARD: STRICT SCRUTINY – this is the same for all fundamental rights.
Compelling/substantial government interest that is narrowly tailored

Turner v. Safley pg 546 – even prisoners have a right to marry. The gov interest here was
pregnancy or birth of a child to an inmate, but the court struck it down. The right to marry is
fundamental, because marital status is often a precondition to receipt of gov benefits, property
rights, and other benefits like legitimation of children born out of wedlock.

Moore v. East Cleveland page 546– zoning ordinance limited housing to members of a “single
family,” narrowly defined. Grandmother shared home with two grandsons who were first
cousins rather than siblings, which wasn’t close enough to be considered a “family.”
o
Marriage and defining your own family is a fundamental right. The gov interest was
not compelling enough.

Village of Belle Terre v. Boraas pg 547 – no privacy rights in a family-oriented zoning restriction,
excluding most unrelated groups from a village.

Troxel v. Granville pg 548 – Sole surviving parent of two kids was limiting paternal grandparents’
visitation times. Makes parental control a fundamental right.
o

Court says the parent has the ultimate right in decisions regarding visitation and raising
of children, as long as they are fit to be a parent.
Michael H. v. Gerald pg 549 – CA law established a presumption that a child born to the wife is
legitimately a child of the marriage. Child in this case’s real biological father wanted visitation.
o
When deciding who rears a child, we protect the nuclear family
o
Only married parents may make the ultimate decision regarding their children. History
and traditions don’t protect unwed biological fathers.
D. Substantive Due Process/Sexual Orientation Discrimination
Lawrence v. Texas (Sodomy/Homosexuality) pg 561
TX statute prohibited sodomy
Reas: (Kennedy) Engaging in personal and familial
relationships is a fundamental right, as it is a
Issue: Does the Const protect the right of
liberty interest. There is no history of laws
consenting adults to engage in intimate sexual
directed at prohibiting homosexual conduct in
contact in the privacy of their own home,
our history.
including homosexual couples?
Held: Yes
Concur: (O’Connor) The law should be voided under Equal Protection, not Due Process.
Dissent (Thomas): The law is uncommonly silly and should be repealed, but there is nothing in the
Const or Bill of Rights to stop them from enacting the statute
(Scalia) The court should not consider public opinion or foreign laws in making its ruling. Moral
disapproval is part of the political process, and the voters should make this decision – not the courts.
United State v. Windsor (Same-sex marriage) pg 572
Defense of Marriage Act prohibited gay marriage Reas: This violated both Equal Protection and
by defining marriage as a legal union between
Due Process. It violates Due Process, because
one man and one woman.
there are recognized fundamental rights to childrearing, family formation, sexual partners, etc.
Issue: Does a federal statute excluding same-sex
Violates Equal Protection because it seeks to hurt
couples from the definition of “married” to avoid a “politically unpopular group.” The legislative
paying them federal benefits violate Due
history showed that the law was meant to
Process?
disadvantage same-sex couples.
Held: Yes, DOMA unconst.
Dissent: (Scalia) See your notes if this even comes up
Obergefell v. Hodges (Same-sex marriage) pg 581
States weren’t respecting the same-sex marriage Reas: (Kennedy) The definition of marriage has
rights from other states.
evolved. There are various understandings to
what marriage is. Our history and traditions on
Issue: Must states issue marriage licenses and
this has changed over time. Our understanding of
recognize lawful out-of-state marriage for sameit can be shaped by societal changes. Marriage is
sex couples?
a fundamental right.
Also, Due Process is an individual right, not
Held: Yes
subject to majoritarian control. It doesn’t matter
if some majority doesn’t want gay marriage. It is
a fundamental right.
STANDARD HERE IS LEGITIMATE, NOT
COMPELLING GOVERNMENT INTEREST
Dissents (Both Scalia and Roberts): Leave this to the political process
Part II – Equal Protection
Equal Protection Overview- 3 categories plus one “small wrinkle”
1. Racial Classification – must have compelling state interest and discrimination must be necessary
in order for government to discriminate.
a. Only ever used in Korematsu
2. Gender classification – must have important government interest and the discrimination must
be substantially related to that interest
3. Any other classification – kind of job, income, education, etc. – Gov must have a legitimate
purpose, and that purpose is reasonably related to that interest.
4. Fundamental interest – voting, access to courts – compelling state interest that is necessary
A. Minimum Rationality Review of Economic Regulation (#3 above – no suspect class)
Railway Express Agency v. New York – rational basis, over/under-inclusiveness
NY statute prohibited vehicles devoted to
Held: No, because it falls under #3 above
displaying large ads, but allowed business
vehicles to display signs related to their business
Reas: (Douglas) Uses rational basis test. (1) Look
as long as the vehicle wasn’t only used for
at whether the regulation is rationally related to
advertising.
a legitimate government purpose, then (2) look
at whether the statute is over or under-inclusive.
Issue: Whether this violates Equal Protection
In this case, it was rationally related, and was
under-inclusive.
USE THIS TEST WHEN NO SUSPECT CLASS, and
remember that animus is never a legit
government interest
Under-inclusive laws will specifically target a small group of people. It was upheld here, but stay
tuned, because there was no animus here.
Over-inclusive laws target way too many people – maybe everybody. Less likely to be intrusive
because everyone is subject to it.
To figure out over or under-inclusive, look at the relationship between the M (mischief – what the
gov wants to solve) and the T (trait – who is allowed/not allowed to do something to advance a
goal? Here, the M was driver distraction and the T was ads for hire on trucks. That is underinclusive.
Over-inclusive example: People are littering, so we check everyone’s pockets. The M (mischief) is
very small and the T (trait) is very large. It is over-inclusive.
Notes

US Dept Agriculture v. Moreno pg 649 – Limited food stamps to only a “household” defined as
“a group of related persons.” Under-inclusive law that was struck down, despite Railway.
o

NYC Transit Authority v. Beazer pg 649 – law excluded methadone users from Transit Authority
employment.
o

There was an animus here that was under-inclusive. The statute sought to stop hippies
living in communes from receiving food stamps. Government not liking hippies isn’t
enough. Government cannot harm a politically unpopular group.
M was safety (drug addiction among workers). T was methadone users. T was very small
while M was very large, making this an under-inclusive law. It was struck down, as in
Railway above.
Village of Willowbrook v. Olech pg 651 – town demanded 33 ft easement for municipal water to
ONE FAMILY while everyone else only needed to give 15 ft. Olechs had previously won a lawsuit
against the town.
o
This is another animus one, like Moreno above. The T was way too small (one family).
US RR Retirement Bd. v. Fritz – the death of economic equal protection (pg 652)
To save RR money, Congress passed law that
Reas: (Rehnquist) – use rational basis test b/c no
eliminated accruals of benefits to anyone not
suspect class. The M was large (saving money)
working for RR before 1974.
and the T was small (small group of RR workers
not receiving benefit). Thus, it passes the rational
Issue: Does depriving one set of unretired
basis test.
workers of dual benefits while continuing them
for another who satisfied the criteria deny them
There was no animus
equal protection?
Held: No
Argument against this case: Carolene footnote insular, unprotected minority. A politically powerless
group should be helped by the government, like these RR workers. Court doesn’t go this way b/c
worried about Lochner.
B. Equal Protection/Race Discrimination
1. Facial Classifications that Disadvantage based on Race. STRICT SCRUTINY – compelling state interest
that is narrowly tailored.


Strauder v. West Virginia pg 658 – black D was given all white jury b/c of law saying jurors had to
be white and 21+ y/o
o
Early case. Essentially says the Constitution is colorblind.
o
Not a compelling state interest for the law, and was not narrowly-tailored
Korematsu v. United States pg 678 – One example of facial classification surviving strict scrutiny.
o
Here, internment of Japanese people was of “pressing public necessity.” There was no
alternative to the internment that would be able to pick and choose which Japanese
were loyal and which were not.
2. Facial Classifications that Segregate based on Race

Loving v. Virginia pg. 673 – black and white people married in DC (where legal) moved to Virginia
(illegal). They were arrested for interracial marriage.
o
Issue: May the state enact a statute with a facial classification that segregates on race?
Held NO!
o
Strict scrutiny

Brown v. Board of Ed pg 658-ish TABBED in binder

Johnson v. California pg 677 – strict scrutiny must be applied to a state policy that segregated
prisoners by race, even where preventing racial gang violence was the justification.
o
Prisoners being “equally segregated” is not enough to pass strict scrutiny.
3. Facially Neutral Laws with a Disproportionate Impact Based on Race
MUST SHOW PURPOSE AND EFFECT!

Yick Wo v. Hopkins pg 683 – even if a law is facially neutral, fi it is applied and administered with
an eye toward an unequal hand, so as to practically make unjust and illegal discriminations
between persons in similar circumstances, the denial of equal justice is still within the
prohibition of the Constitution.

Washington v. Davis pg 686 – black guys couldn’t get a job as a cop in DC. Sued, alleging racially
discriminatory hiring practices, based on a verbal skills test, meant to discriminate based on
race, though looking facially neutral.
o
Was OK b/c there was no indication that the police dept had a discriminatory purpose.
All they had was a discriminatory effect. YOU NEED BOTH DISCRIMINATORY PURPOSE
AND EFFECT BEFORE APPLYING STRICT SCRUTINY TO FACIALLY NEUTRAL LAWS.


Arlington Heights v. Metropolitan Housing Corp pg 689 – you can establish discriminatory
purpose from circumstantial evidence. To find purpose, look at the historical background of the
decision. Look for a series of official actions taken for invidious purposes.
o
Rogers v. Lodge pg 691 – example of finding purpose after Arlington Heights
o
Hunter v. Underwood pg 692 – another example.
Racial Classification Outline
1. What level of scrutiny?
a. All racial classifications potentially harmful
b. Disadvantaging majority should be treated differently
c. Applies to: higher education, employment, student assignment
2. What are government interests?
a. Redressing past discrimination
b. Diverse education environment
c. Avoiding racial isolation/segregation
3. What is narrowly-tailored?
a. Individualized assessment
b. Race Neutral alternatives considered
C. Sex/Gender Classifications and Equal Protection


Craig v. Boren pg 763 – OK statute wouldn’t let men 18-21 y/o buy alcohol over 3.2% ABV , but
allowed women of that age to buy it.
o
ESTABLISHES INTERMEDIATE SCRUTINY for gender classifications: the classification
must be substantially related to the achievement of an important government purpose.
o
Here, it was not rationally related because only 2% of males in that age group were
arrested for drunk driving, while 0.18% of females were arrested for it. Women were
able to buy alcohol for the men, anyway. No stats offered regarding the use and relative
dangerousness of a 3.2% ABV drink compared to higher ABV drinks. Denied equal
protection to males ages 18-21, so was struck down.
o
Traffic safety not substantially related to the classification of men as drunk drivers. This
was just a stereotype, and stereotypes will be struck down.
See Hogan on pg 766 if necessary. About man trying to get into historically all-woman nursing
school.
o


Needed to allow the man into the all-woman nursing school
United States v. Virginia (VMI) pg 769 – all-male military school didn’t allow women. Created an
alternative school for them.
o
Maintaining existence of single-sex school doesn’t further the “important state
purpose” of maintain diversity of public education institutions. The “adversative”
method (a sort of bootcamp method) does not provide educational benefits that can’t
be extended to females unmodified (this is a stereotype).
o
The alternative school was lacking in resources and was run differently than the all-male
school, so not a reasonable alternative.
Geduldig v. Aiello pg 778 – pregnancy is not a sex classification. Exclusion of disability that
accompanies normal pregnancy and childbirth from CA’s disability insurance system does not
constitute “invidious discrimination” under the Equal Protection Clause. Pregnancy is not a
gender classification because both men and women are non-pregnant people, while only
women are pregnant people. They removed this benefit to save money. They were treating a
subset of women (pregnant ones) differently than non-pregnant ones, so scrutiny level isn’t
raised.
o
But see Michael M. pg 779 – males were punished under statutory rape laws while
women were not. A 17 year old male was convicted of statutory rape for having sex with
a 16 y/o girl. Survives intermediate scrutiny, because men can’t get pregnant while
women can. Thus, the girl suffers the consequences already. Though, this is kind of like a
stereotype that boys aren’t careful when they have sex. ALSO SEE NGUYEN (PG 784)

o
Biological differences (not stereotype) was the reason for this ruling.
Congress moots this later (footnote page 779). Pregnancy discrim is forbidden.

Rotsker v. Goldberg pg 781 – exclusion of women from the draft.

Sessions v. Morales-Santana – Mothers and fathers of kids born overseas treated differently.
Mothers could transfer citizenship if lived in US 1 year prior, while fathers needed 10 years of
physical presence prior with five of those years being older than 18.


o
This was based on a stereotype that the mother might fraudulently claim the father is
American. If you look at history it’s a stereotype that the unwed mother will be the one
to take care of the kid, which is the reason for the 1 year and 10 year difference.
o
Court decides 10 years for both mothers and fathers. Unwed mothers cannot be treated
differently from unwed fathers.
Personnel Administrator of Mass. V. Feeney pg 786 – Vets automatically get civil service jobs. At
the time, 98% of vets were men.
o
Court holds not gender classification b/c only applicable as to veterans vs. non-vets,
rather than males vs. females.
o
They use the rational basis test instead of intermediate scrutiny, because it was not
based on sex, but on status as a veteran.
o
THE POINT: if you can’t find a discriminatory purpose, just use the rational basis test.
Outline for Sex/Gender Classifications:
o
o
Heightened/Intermediate Scrutiny

Important gov interest, substantially related.

Administrative convenience, stereotype, generalities not sufficient

Craig, Hogan, VMI
“Real Differences”

Pregnancy not a sex classification – Geduldig

But see Michael M, Nguyen (Nguyen pg 784 highlighted)
o
Effect and Purpose – Feeney (rational basis vs. intermediate scrutiny)
o
Preferences – past discrimination v. stereotype
D. The “Fundamental Interests” Branch of Equal Protection
 Voting
o
Poll tax Harper (pg 806) -poll taxes are unconstitutional. The government interest of
revenue to run elections and paying to vote raising voter interest disenfranchises based
on wealth.

o
Harms people based on poverty! Fundamental interests are subject to strict
scrutiny.
Voting limited to those “interested”


Kramer pg 808 – NY residents could only vote in school district election if they
owned or leased taxable property in the district AND were parents or had
custody of children enrolled in the schools.

Violates equal protection b/c this is not narrowly tailored. It is both over
and under-inclusive.

The standard when states make rules on voting: When you discrim
against a group you need an “important government interest” that is
narrowly tailored enough to justify voting discrimination.
Salyer pg 810 – votes apportioned for a special water storage district based on
whether you were a landowner, and based on the value of your land.

o
Since the election has a special, limited purpose and the
disproportionate effect of the activities of the law hit the group as a
whole, the law was only subject to minimal scrutiny.
Voter ID Laws Crawford (pg 810) – voter ID law OK because balance state interests
instead of the Harper-Kramer rule.

This doesn’t stop anyone from voting. The gov interest is electoral integrity and
the burden is on the small group of people who won’t vote now. The ID was
free but you had to pay for government docs to get the ID if you didn’t yet have
one.
o
Felon Disenfranchisement Richardson (pg 810) – survives because it’s not like a poll tax.
Equal protection clause of the 14th says people can have rights taken away if criminal
(see highlights)
o
Vote Dilution

Reynolds (pg 814) – In 1961, votes were still apportioned as they were in 1900,
despite a growing population. This effectively diluted the vote of people in
Jefferson County, AL.


Evenwell supplement pg 15 – prisoners and legal aliens who can’t vote were
counted in the population for purposes of weight of votes in different districts.

o
This law is OK because the 14th Amendment says votes based on
population.
Political Gerrymandering Davis (pg 819) – Dems got 53% of vote but only 40% of seats
in the State Senate due to political gerrymandering.

Rule: Political gerrymandering only violates equal protection if (1) there is
discrimination or (2) an entrenched, consistent frustration of the will of the
voters. The amount of time over which the frustration must take place is
arbitrary.



The vote here was diluted because votes in some areas weighed more
than others. The political process can’t fix this because there are
entrenched interests to keep the status quo. Now every district needs
roughly the same number of votes apportioned.
VERY HIGH BARRIER
See also AZ Leg. v. AZ Independent Redistricting Commission pg 823 –
independent voter commissions made to redraw districts is okay because
“legislative” doesn’t mean a particular body under Art I § 4 cl. 1 – it means the
People of the State.
Access to Courts
o
Criminal Appeals Griffin and Moffitt (pgs 825-828) – Griffin was an appeal from a
criminal case. Can’t stop destitute people from appealing BUT Moffit was a discretionary
appeal (court under discretion whether to hear appeal). “You only get one bite at the
apple,” and this discretionary appeal was a second bite.

o
o
Also see Halbert (pg 828) – nolo contendere pleas (neither admit nor deny –
amounts to a guilty plea). Gov must pay for this first bite at the apple if the D
is destitute.
Civil Appeals Boddie (pg 829) Divorce – can’t charge for divorce, because divorce
proceedings are the only way to get out of a marriage. The government has put you in
the position, and can’t force you to stay in it. Also, marriage is a fundamental right.

However, gov’t will never pay for a marriage license.

Bankruptcy (pg 830) – you have to pay your filing fees. Not like Boddie b/c there
are other avenues for recourse like negotiating with your creditor. Also, solving
economic problems isn’t a fundamental right like marriage.
Appeal of Termination of Parental Rights MLB (pg. 831) – Needed to pay fees in
advance to appeal a termination of parental rights decree. Liberty interest at stake
(having a family). Gov. shouldn’t interfere just because she’s destitute.

No fundamental interest in food, shelter, or education (pg 836)
o
Education San Antonio v. Rodriguez – School districts had disparity in funding based on
real estate taxes across the community. State law said you could only use a certain % for
schools. Poor districts were given $500 for each student while rich districts were given
$49,000 for each student.

Education not a fundamental interest. Having an adequate education might be
one, but having a really good education isn’t

But Plyler (pg 846) – heightened scrutiny when excluding undocumented
children from school.
D. First Amendment
Basic overview:
1. Today, we use a structural/theoretical approach:
a. Allow us to get to the truth of the matter. Everybody’s going to be saying some
untruthful and some truthful things. Allowing all that speech into the “unregulated
marketplace of ideas” will get us to the truth eventually.
b. The political process will help us get to the truth of the matter.
c. Autonomy, liberty, and self-fulfillment is the reasoning for protecting stuff like art. It
involves development of an individual as a means of liberty
d. The government isn’t a trustworthy regulator! Debate on this today (e.g. Citizens
United)
2. The categories of unprotected speech are:
a. Incitement
b. Fighting Words
c. Libel
d. Obscenity
e. Child pornography

Incitement Brandenberg – Guy wore Klan regalia, burning a cross, and uttering derogatory
speech. He was arrested for incitement. The test:
o (1) Language of advocacy directed at inciting?
o (2) Imminent serious lawless action
o (3) Likely to produce such action.


Gets rid of the “intent” part of the clear and present danger test (see your
notes).

BUT see MST stuff (pgs 985-986). The Brandenberg rule really only
applies when “we’re not afraid.”
Fighting Words Texas (pg. 990) for first two elements, Chaplinsky pg 987 for third:
o
(1) Direct personal insult (personally-directed abuse)
o
(2) Invitation to fight (requires proximity)
o
(3) Likely to provoke violence

Hostile Audience
o
Concern for preservation of order by police
o
Not based on content
o
Imminence of disorder

o
Obligation to protect unpopular speaker?

o
Cantwell (pg 991), Feiner (pg. 994), Edwards (pg 996) – See the book and your
notes if this comes up.
Yes, see Edwards pg 996 or notes
Permit fees

See Forsyth pg 998 or notes
Speech Regulation


Content-based or viewpoint-based regulation?
o
Facially content-based or viewpoint-based restrictions are subject to strict scrutiny.
o
Content-based is likely to fail, unless Burson (pg 1169) – restriction of picketing within
100 feet of entrance to polling place OK because it avoids voter intimidation and
election fraud.
o
Rules based on content Reed (pg 1162)
o
Standardless discretion Saia (pg. 1215)
Content-Neutral regulation? Two types have come before the court:
o
O’Brien (pg 1180) – Symbolic Expression/Conduct (draft card burning). Is it symbolic
expression/conduct? O’Brien Test:

(1) person intends to convey message

(2) message reasonably understood

If these are met, move to intermediate scrutiny:

(1) gov has power to pass that law

(2) law unrelated to suppression of an idea

(3) there’s an important gov interest

(3) closely related law and government interest >>>>>>>>>>>>>>>
o
o



(1) Important gov interest

(2) unrelated to suppression of an idea

(3) restriction is no greater than necessary.
The other test is for content-neutral laws that aim at expression, but for reasons
unrelated to its content.


If you fail this (restricting an idea), move to strict scrutiny
(Spence Test):
Here, you use the time, place, and manner test
Total medium ban? (A certain medium of communication is banned).
o
A type of content-neutral law.
o
STRICT SCRUTINY because banning an entire medium of speech. Also, stuff like leafleting
is available to poor people while buying a billboard isn’t.
Restrictions on gov’t property:
o
Functional approach – speech/expression compatible with function (Brown/Grayned)
o
Categorization – Public forum, limited public forum, non-public forum

Public forum: strict scrutiny if content based/total medium ban

Limited pub forum: no viewpoint based/can limit content

Non-public forum – reasonable (Lehman, Perry, ISKCON)
Religion: See your notes