CONSTITUTIONAL LAW OUTLINE

I. FUNDAMENTAL PROCEDURAL RIGHTS AND THE INCORPORATION DISPUTE

A. Pre-Civil War Situati!
1) "arr! v. Ma#r a!$ Cit# Cu!%il & "alti're (1833) (p.412)
a) Facts: A wharf owner (Barron) sued the city of Baltimore for ruinin the use of his wharf! aruin that the
city"s actions #iolated the Fifth Amendment"s prohi$ition on ta%ins without &ust compensation.
$) 'ssue: 's the Fifth Amendment"s &ust compensation pro#ision applica$le to the states(
i) in $roader conte)t! the *uestion is whether the Bill of +ihts , perhaps with the e)ception of the First
Amendment , applies to the states( -o who is the Bill of +ihts addressed(
c) .oldin: (/arshall): 0o. The 5
th
Amendments just compensation clause provision is not applicable to the
states.
i) /arshall says that the amendments are not limitations on the powers of the state o#ernments $1c the
Bill of +ihts was put into place to limit the fed. o#t. and so there is a presumption that any rihts are
assumed to limit only the fed. o#t. unless it e)pressly states otherwise
(1) loo%s at Article! ' 223 and 14 5 when the constitution meant to $ind the states it did so in so many
words. Fifth Amend. does not say 60o 7tate 7hall.8
d) 'mportance: why was it so important whether the fed. $ill of rihts applied to the states(
i) as an institutional matter! it comes to who ets to decide for whom , an issue of authority
ii) as a su$stanti#e matter! a set of national rihts would ha#e a unifyin function
'n the pre9ci#il war era! $asically! the only federal limitations on the states are those in Article ' of the constitution
, Bill of Rights was viewed as not binding on the states
2) Dre$ S%tt v. Sa!&r$ ()*+,- , :ynchpin Between Barron and 7lauhterhouse
a) Facts: ;red 7cott! a sla#e! was ta%en to 'llinois (free state) and then $ac% to /issouri (sla#e state) , and he
contends that he was free. 7ued master in fed. ct. under di#ersity &urisdiction. (/< compromise , outlawed
sla#ery north of a particular parallel)
$) .oldin: the =ourt re&ects 7cott"s suit on two rounds:
i) theory that &urisdiction was di#ersity of citi>enship , =t. said that African9Amers.! whether or not free!
were not a part of the 6?eople of the @.7.8 5 could not $e citi>ens of the @.7. or a state for federal law
purposes 5 dismissed.
ii) A#en if there was &urisdiction! this part of the /issouri =ompromise is unconstitutional $1c sla#es are
property and the =onst. protects aainst ta%in of property without due process of law 5 =on. can"t
reulate sla#e property in this way.
c) 'mportance: 7.=t. said! in effect! that there can"t $e political settlements o#er sla#ery. -here was no political
solution a#aila$le to =on 5 war was the only real option.
". T.e Pur/0e a!$ I'/a%t & t.e P0t-Civil War A'e!$'e!t0
1) ?olitical and =onstitutional <utcome of the =i#il Bar
a) =onstitutionali>ed the end of sla#ery , 13
th
Amend. 5 this is a $lan%et prohi$ition! not addressed to the
states.
i) howe#er! this turned out not to $e enouh , many confederate states passed Blac% =odes. 'n response!
=on. passed =i#il +ihts Act! $ut there was dou$t a$out the #alidity of the act , *uestion whether this
was within =on. authority or was a matter for the states.
$) 14
th
Amend. was meant to constitutionali>e the 18CC =i#il +ihts Act , the 14
th
Amend. is framed in eneral!
race9free terms.
i) the ne)t 13D years is a$out what 7ection 1 of the 14
th
amendment means.
1
2) T.e )1
t.
A'e!$'e!t
a) =iti>enship is a matter of federal constitutional law
i) the first sentence effecti#ely o#erturns ;red 7cott
$) ?ri#ilees and 'mmunities =lause , 60o state shall ma%e or enforce any law which shall a$ride the
pri#ilees and immunities of the citi>ens of the @nited 7tates.8
i) this is the part of the 14
th
amend. that is the most o$#ious candidate for ha#in a su$stanti#e effect on
rihts
c) A*ual ?rotections =lause
d) ;ue ?rocess =lause
i) $inds states , the D
th
amend. due process clause $inds the fed. o#t.
3) Slau2.ter-Hu0e Ca0e0 ()*,3- (p.41D)
a) Facts: A :ouisiana law that ranted a 2D9year monopoly for one corporation to maintain slauhterhouses in
and around 0ew <rleans is challened $y out9of9wor% $utchers as a #iolation of the 13
th
and 14
th

Amendments , as creatin 6in#oluntary ser#itude8 (13
th
)! and a$rided the pri#ilees and immunities of the
citi>ens of the @7 $y denyin them e*ual protection (14
th
). -he primary purpose of the law was to remo#e
no)ious slauhterhouses from the more densely populated part of the city.
$) 'ssue: ;o the 13
th
and 14
th
Amendments ma%e procedural uarantees of the Bill of +ihts applica$le to the
states(
c) .oldin: 0o. -he 13
th
and 14
th
amendments do not ma%e procedural uarantees of the 13
th
and 14
th

amendments applica$le to the states.
i) 13th amend. 5 the =t. says that 13
th
doesn"t apply here $1c it was meant to deal w1 sla#ery and this has
nothin to do with sla#ery
ii) 14
th
amend. 5 -he attitude we need to $rin to the 14
th
is that the pervading purpose of the post9war
amendments is to accomplish and complete emancipation.
(1) /rivile2e0 a!$ i''u!itie0 %lau0e (this is where the action is)
(a) /a&ority: -he ?E' clause spea%s only of the ?E' of citi>ens of the @7! not of the se#eral states.
-he ma&ority says that the $undle of rihts reconi>ed $y the 14
th
amendment is a different
$undle reconi>ed in the pri#ilees and immunities clause of Art. 'F. 22 (which says: 6-he
citi>ens of each state shall $e entitled to all pri#ilees and immunities of citi>ens in the se#eral
states8).
(i) 'f this is the same $undle then we"#e &ust transferred an immense amount of power from the
states to the federal o#t.
1. the ma&ority sees that the dissent"s approach would $rin fed. o#ernance into all
reulatin reimes and is resistin that radical approach
(ii) -he ma&ority #iews the Art. 'F ?E' as pertainin solely to wanderers rights , when people
from other states come throuh they must $e i#en those same rihts with reard to
fundamental rihts of that state.
($) ;issent: thin%s the $undle of rihts reconi>ed $y the 14
th
amend. is the same as that reconi>ed
in Article 'F , and that the $undle of rihts not only applies to wanderer"s rihts $ut operates
intra-state as well as inter-state.
(i) the 14
th
amend. ta%es the $undle and protects citi>ens from depri#ation of their common
rihts $y state leislation
(ii) ma&ority #iew would ma%e ?E' clause meaninless
the 7lauhterhouse cases ma%e the pri#ilees and immunities clause of the 14
th
amend. disappear for 12D years.
howe#er! while $ein erased from constitutional concerns! the ?E' clause aruments ha#e not $een erased.
4) 7aen> #. +oe (1333) (p.428) (modern #ia$ility of ?E' clause of 14
th
amendment)
a) Facts: =alif. enacted a law that if you mo#e to =alif. you will not $e a$le to recei#e =alif. welfare $enefits for
the first 12 months.
$) .oldin:
i) +eardin wanderer"s 5 state9created $enefits are not considered fundamental rihts for the purposes of
Article 'F
2
ii) +eardin re9settlers 5 the ct. found that states can"t treat new citi>ens different from old citi>ens.
(7ome thins are e)empted , e.. di#orce! in9state school tuition)
(1) 7.=t. held that the reason that states can"t treat new citi>ens different from old citi>ens is the first
sentence of the 14
th
amend , the ?E' clause
c) ;issent: says that the one9year waitin period is a way of measurin $ona fide residence , that you intend to
remain indefinitely.
d) ?rinciple: =t. here says that a state can"t prohi$it people from comin in to ta%e ad#antae of what the state
has to offer , with a few e)ceptions.
i) -his may rest on structure of the fed. union! the 14
th
amend. (e*ual protection of the laws)! or ?E' (riht
to mo#e and stay there).
C. Due Pr%e00 a!$ t.e I!%r/rati! C!trver0#
Car$45Fra!&urter5Harla! "la%6 W.ite
Selective incorporationG
fundamental #s.
not9so9fundamental rihts
Total incorporationGoriinal
purpose was to incorporate all the
Bo+ to apply to the 7tates.
/odern FiewGfocus on what is
essential to Anlo9American
&ustice.
@npredicta$leGwhich rihts were
in the core and which were in the
periphery would chane with new
&udes.
-his #iew is insensiti#e to the fact
that some clauses ha#e federalism
concerns (e.. 2nd Amend.)
"la%6 , was the reat proponent of the arument that the 14
th
amendment incorporated all of the Bill of +ihts
and applied it to the states , and that this was all the ;ue ?rocess =lause did. 't o#errules Barron.
o one of Blac%"s most persuasi#e aruments for total incorporation is that it eliminated &udicial discretion as to
what the rihts are , he was worried a$out un$ridled &udicial discretion $eyond the te)t of the constitution
o Blac% would say that amendments 1 , 8 all apply to the states as a result of the 14
th
amendment , nothin
less! nothin more.
Fra!6&urter , this is a ;ue ?rocess =lause. Bhy would they use a due process clause to o#errule Barron if it
already e)isted elsewhere $efore(
1) ?al%o #. =onnecticut (133H) (p.43D) (=ardo>o , selecti#e incorporation)
a) Facts: ;efendant was tried twice for murder $y the stateI he claims that such a retrial in federal courts would
constitute dou$le &eopardy in #iolation of the D
th
amendment.
$) .oldin: (=ardo>o) -his is not a fundamental rihtI !l# fundamental rights are i!%r/rate$ i!t t.e )1
t.

a'e!$'e!t70 $ue /r%e00 %lau0e.
c) Bhat would Blac% say(: the D
th
amendment spea%s a$out dou$le &eopardy in federal settins and the 14
th

amendment applies the dou$le &eopardy clause to the states.
2) Adamson #. =alifornia (134H) (p.43C) (=ordo>o #iew , selecti#e incorporation 1 Blac% dissent)
a) Facts: Adamson claimed that his murder con#iction #iolated the 14
th
amendment $1c the prosecution had $een
permitted to comment on his failure to ta%e the stand at his trial.
$) .oldin: (+eed) /a&ority adhered to =ardo>o"s #iew. +eed said that while such a comment would #iolate the
D
th
amendment"s self9incrimination pri#ilee in a federal proceedin! under ?al%o not all Bill of +ihts
uarantees are protected $y the 14
th
amendment and there is no ground to make the self-incrimination
privilege applicable to the states.
i) =oncurrence (Fran%furter): there are some dou$le &eopardy #iolations that would #iolate the due process
clause , Fran%furter would loo% at each particular practice and see whether it offends the American basic
sense of justice and liberty , if it does! then it #iolates the 14
th
amend.
(1) -he 14
th
amendment"s due process clause has it"s own independent function.
c) ;issent (Blac%): 'nsisted that t.e &ull i!%r/rati! & t.e "ill & Ri2.t0 2uara!tee0 8a0 t.e original
purpose & t.e )1
t.
a'e!$'e!t , therefore! 6the full protection of the D
th
amendment"s proscription aainst
compelled testimony must $e afforded8 to Adamson.
3
3) Du!%a! v. Lui0ia!a ()9:*- (p.441) (Bhite) (selecti#e incorporation apoproach)
a) Facts: ;uncan! who was con#icted of $attery! punisha$le $y up to two years in prison! was denied a re*uest
for a &ury trial $ased upon :ouisiana"s state constitution which re*uired &ury trial only in cases where capital
punishment or hard la$or imprisonment may $e imposed. ;uncan arued that the C
th
and 14
th
amendments
secure the riht to a &ury trial in a case such as his.
$) 'ssue: should this particular Bill of +ihts uarantee $e considered essential to fundamental fairness and!
therefore! applica$le to the states(
c) .oldin: (Bhite) -he riht to a &ury trial in serious criminal cases is fundamental to the American scheme of
&ustice and *ualifies for protection under the due process clause of the 14
th
amendment 5 the C
th
amendment
riht to &ury trial is incorporated throuh the 14
th
to apply to the states.
i) accordin to Bhite! need to loo% and see whether the pro#ision $ein discussed is part of the Bill of
+ihts and loo% at the whole pro#ision (e.. the dou$le &eopardy clause as a clause and the $undle of
protections it i#es aainst the fed. o#t.) and decide whether the $undle , not merely the particular
practice , applies to the states.
the dilemma of selecti#e incorporation (Harla!- , .arlan doesn"t understand e)aminin one pro#ision at a time
and incorporatin all aspects of the pro#ision (e#erythin the fed. o#t. must do under that pro#ision) and not &ust
the particular practice alone. .ow can due process mean pic% and choose(
$y ;uncan most of the Bill of +ihts had $een incorporated
Blac% ne#er ot appro#al of his total incorporation #iew! $ut ot one at a time and ot #irtually all
t.e substantive rights i! t.e "ill & Ri2.t0 are indivisible u!li6e t.e /r%e$ural ri2.t0.
II. SU"STANTI;E DUE PROCESS AND ECONOMIC RIGHTS
part of what is lur%in here is that when the o#t. redistri$utes wealth! it has to $e consistent with some
identifia$le pu$lic ood and it is up to the courts to determine whether or not there is a pu$lic ood , and! e#en if
there is! must loo% at the reasona$leness of the act.
:ochner #. 0J is the sym$ol of &udicial a$use of the power to ad&udicate due process.
A. A!te%e$e!t0 t L%.!er
1) =alder #. Bull (1H38) (p.4D3)
a) Facts: :eislati#e act which re&ected pro$ate court decree and ultimately resulted in property chanin hands.
?laintiff says this is unconstitutional.
$) .oldin (=hase): ?roposes fundamental principle! , that courts ouht to $e a$le to say somethin #iolated
the constitution , no specific part $ut there are some fundamental principles that are #iolated.
i) 0atural law theory 5 there are natural rihts that the o#t. is not free to #iolate , it doesn"t ta%e a
constitutional pro#ision to protect these rihts.
2) /uler #. Kansas (188H) (p.4DH)
a) 7.=t. willin to uphold this reulation aainst li*uor $ut said willin to loo% at substantive reasonableness (a
sinal)
3) <ther cases leadin up to :ochner
a) =orporations are persons for the purposes of the 14
th
amendment
$) +ate reulations of ++ are o%ay! $ut says it in a way that i#es su$stanti#e content in the 14
th
amend. ;ue
process protects the su$stance of property and economic li$erty
i) when there are monopolies! states can reulate rates $1c it is necessary to the pu$lic interest to do so
ii) reulation of prices chared could $e su$stanti#ely wron
4
c) ?rohi$ition , states can reulate , su$stanti#e reasons to outlaw thisI if no su$stanti#e reasons! then it
#iolates economic rihts.
". T.e L%.!er Era< =u$i%ial I!terve!ti! a!$ E%!'i% Re2ulati!
;urin the rein of :ochner9style su$stanti#e due process! there was no deference to leislati#e &udment $ut
rather an intrusion of the &udicial economic #alue choices (o#er those selected $y the leislature).
1) L%.!er v. Ne8 >r6 ()9?+- (p.4D8)
a) Facts: 0J passed a law prohi$itin $a%ery employees from wor%in more than 14 hrs.1day or C4 hrs.1wee%.
:ochner was con#icted and fined for permittin a $a%er to wor% in e)cess of the hours.
$) 'ssue: 's a law that infrines on freedom in the mar%etplace and freedom of contract unconstitutional if it
does not $ear a reasona$le relation to a leitimate o#ernmental purpose(
c) .oldin (?ec%ham): Jes. A la8 t.at i!&ri!2e0 ! &ree$' i! t.e 'ar6et/la%e a!$ &ree$' & %!tra%t i0
u!%!0tituti!al i& it $e0 !t @ear a reasonable relation t a legitimate governmental purpose. (:oo% at
$oth the 'ea!0 and the e!$0)
i) ma)imum hour law is unconstitutionalI eneral riht to contract in $usiness is clearly part of the
indi#idual li$erty protected $y the 14
th
amendment.
ii) the state arued that this was a police power issue (health concerns) , $ut the ct. doesn"t $uy this
connectionI the ct. suspects that this is really a la$or law! not a health law.
(1) la$or laws are to redress ine*uality in $arainin position , the ct. says that anythin a leislature
may do to distur$ peoples $arainin positions is to distur$ the mar%et and li$erty of contract.
(?u$lic health is different)
(2) to test this suspicion! the court as%s the correlation $1w health and $a%ers hours , demands #ery
persuasi#e e#idence of health reasons.
d) ;issent :
i) Hl'e0 5 ?olitics (leislatures) is to fiht out dominant opinions. =ourts should not o#erturn dominant
opinions unless the statute infrines on fundamental principles as they ha#e $een understood.
(1) .olmes! unli%e .arlan! says we don"t ha#e to limit it to health! &ust lea#e it to the leislature , if
they"re rational that"s enouh.
ii) .arlan 5 says there is e#idence of it $ein health law $ut admits that leislatures need to $e watched.
0eed to loo% at reasona$leness. 'n this case! he is satisfied with the reasona$leness of the leislature
=ourt loo%s at $oth 'ea!0 a!$ e!$0 , the ends have to be legitimate and heavy burden on the state to show the
ne"us#fit between the means and the end it was trying to deal with.
:ochner ta%es li$erty of contract principle and ma%es it in#iola$le , constitutionally protected.
o it limits the ends of the police power , la$or laws and laws that affect $arainin power are not part of the
police power.
:ochner is em$lematic of the 7.=t. $ein #ery in#ol#ed in &udicial re#iew and economic inter#ention in the name
of su$stanti#e due process.
the &udes in :ochner era repeatedly thwarted proressi#e economic leislation
2) /uller #. <reon (1348) (p.4CC)
a) =ourt upheld 8 hour limit for women , aruments turn on what ma%es men and women different and why
women need protection.
3) Ad%ins #. =hildren"s .ospital (1323) (p.4C8)
a) 7truc% down minimum wae law for women. =ourt said wae reulations are different from hour reulation
, the state has no interest in pri#ate wae $arains. (After 13
th
amendment women no loner et special
protections $1c now women are leal e*uals to men).
D
4) "a0i% Ele'e!t0 & t.e L%.!er Era a!$ 0u@0eAue!t alterati!0<
a) -hat there is 0u@0ta!tive $ue /r%e00 is a product of the :ochner Ara , this has not $een repudiated ($ut
the standard of re#iew has)
i) the 0ta!$ar$ & revie8 is $ro%en into means and ends.
(1) E!$0 B 's it a permissi$le end( 's what you"re tryin to do important enouh( :ochner era presumed
that the end was unconstitutional
(2) Mea!0 , 0e)us1fit $1w means and endsI to what e)tent does a particular choice of means ad#ance a
particular end( Are there alternati#e means a#aila$le(
$) the :ochner idea that li@ert# & %!tra%t i0 a 0/e%ial %!0tituti!al concern has $een repudiated.
c) S.ar/ li'itati!0 ! t.e u0e0 & t.e /li%e /8er , was deri#ed from the idea that li$erty of K was thouh
to $e special.
d) D%tri!e & 0u0/i%iu0 revie8
e) the i$ea & li@ert# &r t.e /ur/0e0 & t.e $ue /r%e00 %lau0e i0 ver# @ra$ , this $road concept has
sur#i#ed the :ochner era.
f) Treat'e!t & 8'e! , protecti#e laws are o%ay , ultimately repudiated.
C. T.e M$er! Era< T.e De%li!e & =u$i%ial S%ruti!# & E%!'i% Re2ulati!
1) Ne@@ia v. Ne8 >r6 ()931- (p.4C3)
a) Facts: 'n 1333! 0J esta$lished a mil% control $oard which set the minimum retail price for a *uart of mil% at
3 cents. 0e$$ia! a 0J rocer! was con#icted for sellin mil% $elow the leislati#ely mandated price and
challened the constitutionality of the reulation. -he purpose of the policy was to encourae the production
of uncontaminated mil% at a time in which the prices recei#ed $y dairy farmers were less than the cost of
production.
$) 'ssue: =an a state fi) the price of mil%( 's there some pu$lic interest to &ustify reulatin such a commodity(
c) .oldin: ?rice control is constitutional where it is nondiscriminatory and $ears a reasonable relation to a
proper legislative purpose. =ourt adopts 'i!i'u' rati!alit# 0ta!$ar$ 5 as lon as these three elements
are met , and the law is not unreasona$le! ar$itrary! or capricious , due process is not offended.
i) pu$lic control of prices is not per se unreasona$le or unconstitutional , and it is not limited to $usiness
such as pu$lic utilities which affect the pu$lic interest. .ere there is a pu$lic interest in the price of mil%
, ma%e sure mil% is uncontaminated.
ii) it is consistent with due process for a state to adopt whatever economic policy may reasonably be
deemed to promote public welfare , and the courts are without authority to o#erride laws that enforce
such policy.
iii) 've$ burden of persuasion &r' t.e 0tate t t.e /er0! 'a6i!2 t.e %'/lai!t.
d) ;issent: the law ar$itrarily interferes with the rihts of rocers to conduct their $usiness. -here is no
su$stantial relationship $1w means an ends here , *uestions how this will help the farmers if the price control
is on the sale from the store to the consumer.
2) Best =oast .otel #. ?arrish (133H) (p.4H1)
a) Facts: minimum wae law for women in Bashinton state (similar to law struc% down in Ad%ins)
$) .oldin: the court upholds the law , o#errules Ad%ins. $t is permissible to have labor laws designed to
redress ine%ualities in bargaining power b#w legal e%uals. +eulation assurin payment of a li#in wae is
clearly reasona$le! especially considerin the cost to the o#t. and the community of the alternati#e.
i) the idea that li$erty of K $ein constitutionally special is $ein challened here , the idea in :ochner
that la$or laws are illeal is thrown out the window.
ii) the reasonin here does not seem limited to women or the circumstances of the ;epression.
part of what is oin on in 0e$$ia and Best =oast .otel is a shift to a more rela)ed standard of re#iew reardin
economic due process , courts will presume that the laws are rational unless they are really out there. -his is a
rather e"treme withdrawal of judicial review.
C
3) Late )93?70 Devel/'e!t0
a) in the late 1334s! there was a $ra'ati% eC/a!0i! & le2i0lative /8er , reduction in federal &udicial
power1scrutiny of economic policy1due process.
i) Best =oast .otel #. ?arrish e)pands police power to address economic ine*uality
ii) Lones :auhlin 7teel #. 0:+B power of o#t. to reulate national economy , ma%es minimum waes
and ma)imum hours part of the national economy.
iii) Arie +.+. #. -omp%ins fed. courts sittin in di#ersity should apply the same law as the hihest court of
the state , shift in how &udes thin% a$out the common law (re&ects notion that common law is $ased on
natural law re&ects :ochner premise that li$erty of K was a natural riht)
$) the uni#erse of leitimate ends e)panded dramatically
c) 7.=t. $uilds into standard of re#iew much more deference and restraint
4) U.S. v. Carle!e Pr$u%t0 C. ()93*- (p.4H4)
a) Facts: =onressional prohi$ition on certain mil% in interstate commerce
$) 7.=t. said that e#en thouh they"#e withdrawn from &udicial re#iew in these %inds of cases! they ha#en"t
withdrawn completely , they still loo% at the rational basis
i) if it is irrational! then it is unconstitutional , $ut it is #ery hard to show it is irrational $asically would
ha#e to show that a national leislature could not ha#e $elie#ed this scheme would ha#e ad#anced the
pu$lic ood
c) FOOTNOTE 1 , the footnote has $een incredi$ly important in terms of a set of concerns around which the
last CD years of constitutional law has $een de$ated.
i) Para2ra/. ) , 6-here may $e narrower scope for operation of the presumption of constitutionality
when leislation appears on its face to $e within a specific prohi$ition of the =onstitution! such as those
of the first ten amendments! which are deemed e*ually specific when held to $e em$raced within the
14
th
.8
(1) /re0u'/ti! & %!0tituti!alit# i0 .i2. i! $ue /r%e00 %a0e0D @ut 8.e! t.e teCt 0/e%i&i%all#
/r.i@it0 0'et.i!2 8e7ll @viu0l# a$.ere t t.at , textualism
ii) Para2ra/. E (I!/ut0- B 6't is unnecessary to consider now whether leislation restricts those political
processes which can ordinarily $e e)pected to $rin a$out repeal of undesira$le leislation! is to $e
su$&ected to more e)actin &udicial scrutiny under the eneral prohi$itions for the 14
th
Amendment than
are most other types of leislation. <n restrictions upon the riht to #ote M on restraints upon
dissemination of information M on interferences with political orani>ations M to prohi$ition of
peacea$le assem$ly.8
(1) this is a$out ri2.t0 & /liti%al i!/ut , need to ma%e sure that input rihts are protected. Be can
trust politics to ma%e reasona$le law reardin economics , this is tied to the repudiation of
:ochner.
(a) t.e Curt i0 ! l!2er 2i!2 t 0tri%tl# revie8 t.e output & le2i0lati! (ut/ut & /liti%al
/r%e00- @ut 8e 'a# t.i!6 $i&&ere!tl# a@ut la80 t.at re2ulate t.e i!/ut t /liti%al
/r%e00 , such as speech! #otin! etc.
iii) Para2ra/. 3 (Out/ut0- , 60or need we en*uire whether similar consideration enter into the re#iew of
statutes directed at particular reliious! or national! or racial minoritiesI whether pre&udice aainst
discrete and insular minorities may $e a special condition! which tends seriously to curtail the operation
of those political processes ordinarily to $e relied upon to protect minorities! and which may call for a
correspondinly more searchin &udicial in*uiry.8
(1) this pararaph is a$out the vul!era@ilit# & /arti%ular 2ru/0 , that some roups may $e
perpetually left out of the political processes $1c there is pre&udice aainst them.
(a) there may $e situations of corrupted majoritarianism, the courts will ha#e to protect aainst this
%ind of output.
D) Willia'0! v. Lee O/ti%al C. ()9++- (p.4HC)
H
a) Facts: An <%lahoma law prohi$ited opticians and other non9licensed optometrists or ophthalmoloists from
dispensin lenses or e#en fittin frames! e)cept upon written prescription from one of them.
$) .oldin: An economic reulation may $e upheld if the court can concei#e of some rational $asis for the
leislation 'i!i'u' rati!alit# 0ta!$ar$.
i) Ste/ F) , the court says that we will attri$ute a leitimate purpose to the statute as the first step in the
analysis without any e#idence or disclosure of what the leislature"s purpose was , part of the
presumption of constitutionality is that i& 8e %a! &i!$ a!# /00i@le le2iti'ate /ur/0e 8e 8ill u0e
t.at whether or not it is the one expressed.
(1) this presents an arua$ly insurmounta$le $urden on challener to pro#e that no one could reasona$le
$elie#e that these means ad#ance these ends.
ii) Ste/ FE , :oo% to see if there is a 'i!i'al rati!al %!!e%ti! @et8ee! 'ea!0 a!$ e!$0. 'f there is
the possi$ility that the means is rational! that is sufficient. 't must $e irrational or ar$itrary to $e
unconstitutional.
(1) once a statute is passed! it is #ery unli%ely to $e o#erturned $y an economic due process arument ,
economic due process is #ery deferential to the o#t.
C) Pu!itive Da'a2e0 Ca0e0 (pp.4H894H3)
a) these cases are a$out the pro$lem of unfair surprise , the const. sometimes protects people from unfair
surprise (e.. e) post facto laws)
$) B/B #. Nore
i) matter of pre#entin unfair surprise , fair warning
ii) such puniti#e damae limits miht also $e seen as a matter of 0u@0ta!tive $ue /r%e00 , these limits
help to assure the uniform eneral treatment of similarly situated persons.
(1) while some &ustices say this is su$stanti#e due process! a ma&ority is unwillin to say so.
c) Aastern Anterprises #. Apfel (1338)
i) this case is a$out retroacti#e leislation , said the retroacti#e leislation #iolated due processI created
lia$ility for e#ents which occurred 3D years ao. -oo $road scope.
III. EGUAL PROTECTION AND ECONOMIC CLASSIFICATIONS
A. Di&&ere!t Wa#0 & T.i!6i!2 a@ut EAual Prte%ti!
1) 0ormati#e ?rinciple
a) Di0tri@uti!al ut%'e0 'u0t @e substantively &air
2) ?rocess ?rinciple
a) =ertain %inds of decision9ma%in mechanisms are defecti#e and $1c of those defects! the political process
produces distri$utions that are constitutionally unaccepta$le , so !ee$ t l6 !t Hu0t at t.e outcome @ut
at who made the decision a!$ u!$er what circumstances a!$ what motivation.
i) =arolene ?roducts Footnote ?araraph 3 , pre&udice miht interrupt processes that protect minorities
". S%ruti!# & Mea!0 i! E%!'i% Re2ulati!0< T.e Rati!alit# ReAuire'e!t B U!$eri!%lu0ive a!$
Overi!%lu0ive
1) Rail8a# EC/re00 A2e!%# v. Ne8 >r6 ()919- (p.C43)
a) Facts: +ailway A)press operates a$out 1344 truc%s in 0J= and sells the space outside its truc%s to others for
ad#ertisin. -his practice was in #iolation of a 0J= reulation which said , no person shall operate upon
any street an ad#ertisin #ehicle! e)cept that $usiness may ad#ertise their own products or ser#ices on their
own #ehicles. +ailway was con#icted in state court for #iolatin the statute. -he reasonin i#en for the
statute was that it caused distraction to pedestrians and motorists.
$) 'ssue: ;oes a statute #iolate e*ual protection if it punishes people who sell ad#ertisin space on the side of a
motor #ehicle $ut does not punish those who use the same space for ad#ertisin their own $usiness(
8
c) Analysis:
i) Ste/ F)< Bhat is the purpose the state is tryin to accomplish(
ii) Ste/ FE< Bhat is the purpose of the classification of my ads #ersus other ads(
d) .oldin (;oulas):
i) 0J= authorities %now what is $est , we"ll $e&er t t.e Hu$2'e!t & l%al le2i0lative &&i%ial0.
ii) -he %la00i&i%ati! i0 relate$ t t.e /ur/0e for which the statute was made.
(1) presumption of constitutionality , $urden of persuasion on challener.
(2) the court is willin to attri$ute purposes to statutes , as lon as can thin% of some reason that will
ma%e the classification ration.
iii) A#en thouh there may $e distractin ad#ertisin elsewhere! eual protection does not reuire that all
evils of the same genus be eradicated or none at all.
i#) =oncurrence (Lac%son): you can reulate $ut you must reulate e#eryone who presents the daner in the
same way. Arees that there is a difference $1w doin somethin for yourself and doin somethin for
hire.
(1) Lac%son is reconi>in an additional purpose , the leitimacy of a leislature ta%in into account
competin purposes.
2) Le00!0 &r' Rail8a# EC/re00<
a) -he re*uirement of rationality here is &ust a su$9set of the rationality re*uirement in su$stanti#e due process
cases
$) -he classifications that we"re testin under the e*ual protections #iew may $e different from the #iew of the
law as a whole.
c) A*ual protections cases are a$out classifications , a$out the a#erae differences $1w the classes! not a$out
the particular differences $1w them.
3) @.7. ;epartment of Ariculture #. /oreno (13H3) (p.C13) (this case is an outlier , wouldn"t come out same way
today)
a) Facts: federal food stamp proram only to households! defined as people of related indi#iduals. Bhy miht
=on. want to do this( may want to encourae marriae! etc.
$) .oldin (Brennan): the =ourt says that the e)clusion of a household made up of unrelated people was
unconstitutional.
i) this cuts off people who are poor and hunry , it is inimical to the law
ii) when you loo% at the leislati#e history! you see that the leislation was put into place $ecause of hippie
communes this is $ased on animus toward a particular roup and so is unconstitutional.
4) /ass. Board of +etirement #. /uria (13HC) (p.C14) (ae classification)
a) Facts: statute sayin that uniform cops must retire upon reachin D4 (this is $efore A;AA)
$) .oldin: =ourt upheld the law , said this is not in#idious discrimination. Rati!alit# 0ta!$ar$ i0 retai!e$ ,
only need to find some rational reason for the classification in order to sustain the law.
i) the 7.=t. lea#es it to the states $1c this is not an in#idious $asis of discrimination , ae has not $een
classified as a suspect classification (=arolene ?roducts F0 4)
D) U.S. Railra$ Retire'e!t "ar$ v. Frit4 ()9*?- (p.C1C)
a) Facts: Because of a =onressional chane in the railroad retirement system! some wor%ers lost the potential
to collect dual $enefits under the social security system and railroad retirement systems while others were
a$le to reali>e dual $enefits.
i) 4914 years in ++ $usiness out
ii) )?-E+ #ear0
(1) currently connected (in 13H4) to ++ $usiness in
(2) not currently connected out (could ha#e situation where you"#e had someone wor%in for 24
years , $ut if they weren"t wor%in in 13H4 and was out while someone wor%in for 14 years and
did in 13H4 was in)
iii) E+ #ear0 I in
3
i#) retired in
$) 'ssue: ;oes a retirement system #iolate e*ual protection if it distinuishes $etween employees $ased solely
upon their acti#e status on a certain date(
c) .oldin: 0o. -he =ourt will not in#alidate a statute merely $ecause they consider it unwise or unartfully
drawn. A %la00i&i%ati! 'a# @e 0u0/e%t @ut i& a rea0! i0 2ive! t.at i0 e!u2..
i) =on. could ha#e eliminated windfall $enefits for all classes of employees , therefore it is not
unconstitutional for =on. to ha#e distinuished $1w certain roups of employees
ii) T.e Curt 8ill !t evaluate rea0!a@le!e00. Bhen there are /lau0i@le rea0!0 for =on. action! the
=ourt"s in*uiry ends , it does not matter whether the plausi$le reasons were the actual reasons.
(:eislati#e history could e#en contradict what the =ourt finds the purpose to $e , as lon as there is a
leitimate purpose! it is o%ay).
iii) =oncurrence (7te#ens): -he constitution re*uires more than a mere 6plausi$le8 e)planation , we don"t
need the actual reasons $ut we do need to find a correlation $etween the classification and the actual or
presumed purpose. 7atisfied here. Mi!i'u' rati!alit# 0ta!$ar$.
i#) ;issent (Brennan and /arshall): -he rational $asis test is not toothless. -he actual purpose of the
=onress should $e the $asis for analysis under the rational $asis test.
(1) loo% at who ot hurt! what they lost! and whether they were sufficiently represented in the
neotiatin process , the leislation was drafted $y self9interested la$or representati#es , ++ retires
were left out of the neotiatin process
(2) no principle of e*uity or fairness was satisfied here.
the $i fiht $etween the ma&ority and the dissent is o#er the articulation of the purpose
-he o#ernment doesn"t enerally lose e*ual protections cases , what miht lead the o#ernment to lose e*ual
protections cases where there are no suspicious classifications(
o Animus (/oreno)
o =losed set of purposes
o =lassification9?urpose 0e)us
C) Alleheny ?itts$urh =oal #. Be$ster =ounty (1383) (p.C23) (?roperty -a)) (No#t. loses)
a) Facts: BFa property ta) system , BF constitution calls for property to $e ta)ed uniformly on the $asis of its
assumed mar%et #alue. Alleheny was chared ta) $ased on the price paid and pro#ed that others around it
were not payin ta) on $asis of mar%et #alue $ut $ased on the price paid years ao w1o ad&ustment.
$) .oldin: the 7.=t. said the BFa system was unconstitutional , no &ustification for this disparity. BFa has to
i#e OO $ac% to Alleheny for disparities o#er past 14 years.
i) unli%e 0ordliner where there was a deli$erate attempt to achie#e the $enefits of an ac*uisition #alue
system! BFa was not tryin to achie#e that this e)cluded the one purpose that miht ha#e sa#ed
them.
H) 0ordliner #. .ahn (1332) (p.C23) (No#t. wins) (the 7.=t. distinuished Alleheny)
a) Facts: =al. ?roposition 13 , imposin ac*uisition9#alue ta)ation system! $enefitin loner9term property
owners at the e)pense of newer property owners.
$) .oldin: =onstitutional! e#en thouh there are ross disparities as in Alleheny. But here the state declared
its purpose was ac*uisition9#alue ta)ation to protect people from run9up in property #alue1ta)es that people
could not afford.
i) the 7.=t. says that since there are %'/eti!2 /ur/0e0 here! if the leislature chooses the $enefits of the
ac*uisition #alue scheme! it is o%ay.
8) Fillae of Billow$roo% #. <lech (2444) (p.C2D)
a) Facts: Fillae says that if you want to hoo% up to the municipal water supply! then you need to i#e an
easement to the #illae. -he standard easement was 1D ft. $ut the <lech"s were told that they need to i#e 33
ft.
14
$) .oldin: 7.=t. says that it is !t !e%e00ar# t /rve a!i'u0 to reco#er on e*ual protections rounds. -he
=ourt says that there was no &ustification offered for the different amount re*uired of the <lechs there was
no purpose that could $e associated with the 33 ft. re*uest. La%6 & Hu0ti&i%ati! i0 e!u2..
i) =oncurrence (Breyer): would say that if it is a ood faith mista%e then it is not an e*ual protections
#iolation. .is concurrence doesn"t want to dismiss animus outriht , he"s concerned that e#ery little
mista%e would $e a #iolation of e*ual protections.
I;. EGUAL PROTECTION B SUSPECT CLASSIFICATIONS AND FOR"IDDEN DISCRIMINATION
A. Mi!rit#-Di0a$va!ta2i!2 Ra%ial Cla00i&i%ati!0
1) 7trauder #. Best Firinia (1884) (p.C23)
a) Facts: BFa limits &ury ser#ice to white men who are citi>ens of the state (this isn"t a C
th
amend. issue at this
time $1c Bill of +ihts not incorporated into the 14
th
)
$) .oldin: -he =ourt found the law e)cludin $lac%s from &ury ser#ice unconstitutional , said these laws tend
to $e a product of pre&udice and a mar% of superiority1inferiority and! therefore! are a stimulant for pre&udice
in other areas.
2) Jre'at0u v. U.S. ()911- (p.C31)
a) Facts: Lapanese9Americans ($oth citi>ens and non9citi>ens) in concentration camps durin BB''.
$) .oldin (Blac%): 7.=t. says this is constitutional. =t. says that racial classifications that sinle out minority
roups are inherently suspicious and applies strict scrutiny , suspect racial classifications are
unconstitutional unless pressin pu$lic necessity e)ists for them.
c) Analysis: =ourt sets out steps for determinin when classification is 6suspect8:
i) Ste/ F)< !nds .ave t @e legitimate and need to show that the end is significant enough B verri$i!2D
%'/elli!2 , to uphold a racial classification 0.i&t0 t.e @ur$e! t t.e 0tate to show the
constitutionality
(1) in this case! the =ourt isn"t really willin to put the o#t. to a full $urden9of9persuasion shift of this
sort , here! the =ourt defers to the military
ii) Ste/ FE< the "eans 'u0t @e ver# %l0el# relate$ , the fit must $e #ery stron. -here needs to $e !
availa@le ra%e-!eutral alter!ative0.
d) Korematsu is a$out e)ternal relations of the @.7. and that connection to racial classifications , the court
defers here to the military.
7trauder seems to suest a per se $ar aainst racial classifications , Korematsu seems to $ac% down from this
some and rela) the $ar.
Korematsu is racially underinclusi#e , 'talian and Nerman9Americans also
Bhile Korematsu is always cited as the seminal classification case for racial! ancestral matters , for the strict
scrutiny standard! :upu thin%s that is is really pseudo strict scrutiny $1c of the deference to military &udment.
$y the time we et to :o#in! if the state wants to defend a law on racial classifications! not only do the ends need
to $e leitimate $ut there also needs to $e a compellin state interest (weiht).
3) Lvi!2 v. ;ir2i!ia ()9:,- (p.C33)
a) Facts: An interracial couple ot married in ;= and returned home to Firinia. -hey were con#icted of
#iolatin Firinia"s $an on misceenation.
$) 'ssue: ;oes a statute that criminali>es interracial marriae #iolate e*ual protection! e#en if it punishes $oth
the white and non9white partner e*ually(
c) .oldin (Barren): La80 t.at %la00i&# ! t.e @a0i0 & ra%e are revie8e$ u!$er eAual /rte%ti! 8it.
0tri%t 0%ruti!# a!$ 8ill !t @e u/.el$ u!le00 t.e# are !e%e00ar# t a%%'/li0. 0'e /er'i00i@le 0tate
@He%tive0.
i) this statute is opposed to the underlyin purposes of the 14
th
amendment , identifyin races and
distinuishin on those rounds.
11
ii) Firinia arues that this is not discrimination $1c it applies e*ually aainst $lac%s and whites , the
arument fails $1c it only applied to whites marryinI no other concei#a$le purpose other than preser#in
purity of white race.
the *uestion is whether race is a leitimate thin to use as a pro)y for some other end , in :o#in! unli%e in
Korematsu (war! nat"l security)! race is not $ein used as a pro)y for some other pro$lem.
:o#in is a case where strict scrutiny isn"t really necessary , $1c the only $asis is white supremacy! the ct. need
not del#e into the matterI can $asically decide the issue on it face.
the race cases typically cited for suspicion and strict scrutiny don"t really fit the doctrine too well.
4) ?lessy #. Feruson (183C) (p.C3H)
a) .oldin: 7.=t. sustained a :ouisiana law that re*uired 6e*ual $ut separate accommodations8 for 6white8 and
6colored8 railroad passeners.
i) =t. draws line $etween political and social e*uality , the 14
th
amendment was not intended to protect
aainst social ine*uality (comminlin of races)! only political e*uality.
ii) the =t. identifies the police power of the state with the power to protect the customs! mores! and
traditions of the people.
$) .arlan"s dissent in the eyes of the const. there are not castes , the constitution is color9$lind
D) "r8! v. "ar$ & E$u%ati! ()9+1- (p.C33)
a) 'ssue: ;oes forced sereation of pu$lic schools #iolate e*ual protection(
$) .oldin (Barren): 7eparate facilities in pu$lic education are inherently une*ual and therefore #iolate e*ual
protection.
i) ct. decides to employ the #alues of the 14
th
for a 24
th
cent. phenomenon reardless of oriinal intent of
the framers oft eh 14
th
this is a turning point in constitutional interpretation.
ii) must consider the importance of education today , it is the foundation of ood citi>enship and cultural
#alues is a riht that must $e a#aila$le to all on e*ual terms.
iii) there is no strict scrutiny in Brown , that since it"s a$out race it"s suspicious. +ather! it"s all a$out racial
separation , a$out white superiority created $y politics (leislature controlled $y whites)
C) 7an Antonio 'ndep. 7chool ;ist. #. +odriue> (13H3)
a) Facts: ?roperty ta) rate and wealth in district determines school finances , arued e*ual protection #iolation.
Arument that a school could not ha#e a state financin scheme that had a disparity in per9pupil e)penditures
across districts.
$) .oldin: By a D94 #ote! the 7.=t. held that states are allowed to finance their schools in whate#er way they
see fit.
H) /ili%en #. Bradley (13H4)
a) Facts: ;etroit was determined to ha#e unlawfully sereated the schools , ;ist. =t. &ude said that only way
to desereate was to use %ids from the su$ur$s.
$) .oldin: the 7.=t. $y a D94 #ote held that you cannot include other &urisdictions other than the &urisdictions
that ha#e #iolated the law desereation remedy had to $e limited to ;etroit.
". Ge!$er
up until the 13H4"s the =ourt showed >ero sensiti#ity to ender discrimination
can you $e an oriinalist and still thin% the 14
th
amendment stands for ender e*uality( 22 of the 14
th
reaffirms
male9only suffrae.
1) Bradwell #. 'llinois (18H3) (p.C48)
a) 7.=t. upheld $an on women practicin law in 'llinois.
i) this reflects ideas of se) roles in the early 13
th
century.
12
2) Noesart #. =leary (1348)
a) Facts: After BB'' , women can"t $e $artenders e)cept for wi#es and dauhters of the $ar owner
$) .oldin (Fran%furter): +ational $asis test. =t. held that /ichian could for$id women from wor%in in a $ar.
-he =t. applied rational basis test and deferred to the /ichian leislature sayin that the law is not without
a $asis in reason.
3) +eed #. +eed (13H1) (p.CD4)
a) Facts: ?reference in 'daho for men o#er women in appointment of administrators of estates. :aw said that if
you had two or more people in the same entitlement class and one was a man and one was a woman! the man
would win.
$) .oldin: -his is unconstitutional , choice may not lawfully $e mandated solely on the $asis of race.
i) @nder a minimum rationality re#iew! a reasona$le leislature could ha#e thouht that men had more
e)perience ta%in care of money than women this is more than a minimum rationality review.
ii) 'daho had arued that this was a way of ha#in fewer hearins! streamlinin the process , $ut the law
only limits hearins where males oppose females the state"s interest isn"t fully reali>edI there is
somethin a little fishy.
4) Frontiero #. +ichardson (13H3) (p.CD4)
a) Facts: Federal law afforded male mem$ers of the armed forces an automatic dependency allowance for their
wi#es $ut re*uirin ser#icewomen to pro#e that their hus$ands were dependant.
$) .oldin: 7.=t. declared the law unconstitutional. Brennan stated that any statutory scheme which draws a
sharp line $etween the se)es solely for the purpose of administrati#e con#enience #iolates e*ual protection
(+eed). Anyway! the o#t. had no shown that it sa#ed any money $y this practice.
i) -he o#t. had arued administrati#e con#enience , that it sa#ed the o#t. money to presume that wi#es
of male mem$ers are dependant while hus$ands are rarely dependant upon their wi#es.
ii) Brennan made an arument for gender as suspect classification (as discrete and insular minority under
=arolene ?roducts F0 4) $ut does not et a ma&ority for that point.
$y the time we et to =rai #. Boren! Brennan reali>es that he"s not oin to $e a$le to et D #otes for treatin
ender and race classifications e*ually $ut can et D #otes to treat ender li%e ae! etc.
D) Crai2 v. "re! ()9,:- (p.CD2)
a) Facts: <%lahoma statute prohi$ited the sale of 3.2P $eer to males under the ae of 21 and to females under
the ae of 18. -he ;ist. =t. found that the reason for the different treatment was traffic safety , 2P of males
$1w 18 and 24 had $een arrest for ;@' whereas only 4.18P of females in the same roup had $een arrested.
$) .oldin: -he =ourt opts for intermediate scrutiny , 7tatutes which discriminate $ased upon one"s se)
#iolate e*ual protection if they create a ender9$ased classification that is not substantially related to an
important governmental objective.
i) I!ter'e$iate 0%ruti!# Q the classification must $e su$stantially related to an important , not necessarily
compelling , o#ernmental o$&ecti#e.
ii) -he court says that the statistical data showin that 14) reater chance that men will drin% and dri#e is
not sufficient to ma%e the law constitutional statistical a#eraes are not necessarily enouh.
(1) -he state o$&ecti#e here , the enhancement of traffic safety , is clearly important. .owe#er! the
relation $1w this o$&ecti#e and the challened statute is $ased on statistical e#idence frauht with
shortcomins and is inade*uate to show that se) represents a leitimate accurate pro)y for the
reulation of drin%in and dri#in.
sometimes these cases turn on the weiht of the ends $ut most of the time cases of intermediate scrutiny turn on
the relationship b#w the means and the ends and whether the govt& has met its burden of persuasion.
one of the first *uestions need to as% when see a ender classification are there any ender neutral alternati#es
a#aila$le and! if so! what are the costs(
C) /ichael /. #. 7uperior =ourt (1381) (p.CH2)
13
a) Facts: Nender discriminatory statutory rape law , punished males only. Ae of consent for females was 18!
no ae of consent for males if $oth were under 18! statutory rape for male! nothin for female.
$) 'ssue: the *uestion here is whether statutory differences for males and females under 18 reardin the
criminality of the act is constitutional(
c) .oldin: the court said that such statutory differences are constitutional
i) the state had to present a ender9#alue $ased o$&ecti#e for the purpose of the statute
ii) the ct. says that there is a differential *uality to the act for the se)es $1c of real /.#0i%al $i&&ere!%e0
males and females are not similarly situated.
(1) $ecause they are not similarly situated! it is not ar$itrary to treat them differently.
iii) can"t really ma%e the statute ender neutral $1c will create disincenti#e for #ictim of a crime to report
the cost of the gender#neutral alternative is very high.
H) +ost%er #. Nold$er (1381) (p.CH4)
a) Facts: /ilitary 7electi#e 7er#ice Act re*uired reistration of males $ut not females.
$) .oldin (+ehn*uist): the =ourt found the e)clusion of women constitutional , +ehn*uist says that only need
men for com$at ($1c only men are elii$le for com$at) so only men should $e drafted.
i) this is a process approach to e*ual protection , arument is usually $ased on physical difference $ut here
the arument turns on one leal distinction $ased on another.
8) /ississippi @ni#. for Bomen #. .oan (1382) (p.CDC)
a) Facts: /an wanted to o to women"s collee school of nursin
$) .oldin: /iss. not allowed to e)clude men from school of nursin.
i) intermediate scrutiny applies to ender classifications affectin males as well
ii) 'ntermediate scrutiny analysis , <"=onnor re&ected the state"s effort to &ustify its system as $enin or
compensatory sayin that the state failed to esta$lish that the alleed o$&ecti#e is the actual purpose
underlyin the ender classification and that the state failed to show that the ender classification is
su$stantially and directly related to its proposed compensatory o$&ecti#e.
3) L.A.B. #. Ala$ama (1334) (p.CD8)
a) Facts: Ala$ama sued L.A.B. to esta$lish paternityI state used its peremptory challenes to stri%e male &urors.
$) .oldin: ender9$ased peremptory challenes to &urors are unconstitutional
i) applied intermediate scrutiny , Blac%mun stated that the ct. will not accept stereotypes (that men will $e
more sympathetic than women to aruments of a man alleed to ha#e fathered a child out of wedloc%) as
a defense to ender9$ased peremptory challenes.
14) U!ite$ State0 v. ;ir2i!ia (;MI Ca0e- ()99:- (p.CD3)
a) Facts: A youn woman who was otherwise *ualified was denied admission to F/'! a prestiious state
military collee! $ased solely on her ender.
$) .oldin (Nins$ur): A 0tate 'a# !t $i0%ri'i!ate @a0e$ ! 2e!$er u!le00 it .a0 a! eC%ee$i!2l#
/er0ua0ive Hu0ti&i%ati! &r $i!2 0. -he state must show that the classification is substantially related to
the achie#ement of important o#ernmental o$&ecti#es.
i) Fa. has shown no 6e)ceedinly persuasi#e8 &ustification for e)cludin women
(1) Fa. arues that (1) F/' represents educational di#ersity and (2) that the school"s ad#ersati#e
approach would ha#e to $e modified were F/' to admit women.
(a) the 7.=t. lauhs at the first arument , the 2
nd
arument deals with the cost of admittin women
to the character of the institution.
ii) the alternati#e to F/' was a women"s leadership school , paled in comparison to F/' in terms of
cali$er and also in networ%in! alumni! etc.
iii) ;issent (7calia): -raditionI ender9neutral alternati#e would chane and ultimately end the ad#ersati#e
method which is what defines F/' to $ein with.
11)T8 %ate2rie0 & 2e!$er-%!0%iu0 /li%#<
14
a) gender-based affirmative action
i) e..! /iss. @ni#. for Bomen #. .oan (1382) (p.CDC)
ii) e..! =alifano #. Be$ster (13HH) (p.C83)
(1) Facts: social securities earnin formula was more fa#ora$le to women
(2) .oldin: upheld $y 7.=t. on theory that in the la$or mar%et there had $een past discrimination
aainst women permissi$le for =on. to set up different $enefits formula.
there are some suestions in these cases that ender conscious remedyin policies may $e accepta$le
$) pure gender separation
i) first theory , separate $ut e*ual (why is o%ay re: ender! $ut not race()
ii) second theory , physical differences
(1) average differences #s. real differences (no loner similarly situated)
(2) if you let men play soft$all! will push women out of soft$all , don"t ha#e that fear with lettin
women wrestle.
C. Alie!0
1) 7uarman #. ;ouall (13H3) (p.C8C)
a) Facts: 0J law pro#ided that only American citi>ens may hold permanent position in the competiti#e
classified ci#il ser#ice.
$) .oldin: emphasi>ed that the state $arrier does not co#er all hih policyma%in positions! $ut co#ered a
num$er of menial ones therefore the restriction had little! if any! relationship to the state"s su$stantial
interest in ha#in an employee of undi#ided loyalty.
i) -he ct"s scrutiny will not $e so demandin where we deal with matters restin firmly within a state"s
constitutional preroati#es , recognition of states historical power to e"clude aliens from participation
in democratic political institutions.
2) .ampton #. /aw 7un Bon (13HC) (p.C88)
a) Facts: =i#il 7er#ice =ommission reulation $arrin resident aliens from employment in federal competiti#e
ci#il ser#ice.
$) .oldin: 7.=t. in#alidated the reulation
i) the =t. reconi>ed that o#erridin national interests may pro#ide a &ustification for a citi>enship
re*uirement in the federal ser#ice , thouh a! i$e!ti%al reAuire'e!t 'a# !t @e e!&r%e$ @# a 0tate.
(1) "ut =t said that the national interests offered in defense of the $an in this case were not properly the
concern of the =7= , the fed& govt& has plenary authority , only =on. or the e)ecI the agencies
dont have the authority
(2) $ue /r%e00 reAuire0 t.at t.ere @e a le2iti'ate @a0i0 &r /re0u'i!2 t.at t.e &e$eral rule 8a0
a%tuall# i!te!$e$ t 0erve t.e !ati!al i!tere0t , here there was no $asis for such a presumption.
3) /athews #. ;ia> (13HC) (p.C83)
a) .oldin: =t. held that =on. may condition an alien"s elii$ility for participation in federal /edicare
proram on (a) admission for permanent residence and ($) continuous residence in the @.7. for D years.
i) =on.! under its $road power o#er naturali>ation and immiration! reularly made rules that would $e
unaccepta$le if applied to citi>ens , $ut disparate treatment of aliens and citi>ens did not demonstrate
in#idiousness
ii) deferential scrutiny , deferential to =on. , (seems li%e rational $asis scrutiny in the area of immiration
and naturali>ation)
0tate la80 that discriminates aainst aliens $y states is suspicious strict scrutiny
o rationale suspicious of discrimination! animosity
0tate0 %a! li'it t.e vte a!$ .i2. /liti%al &&i%e t %iti4e!0
state has no authority o#er unlawful aliens , can turn them o#er to the feds
1D
D. Ot.er Ca!$i$ate0 &r Su0/e%t Cla00i&i%ati!0
1) N!-Marital C.il$re!
a) intermediate scrutiny is the la$el that ets put on this roup
$) there used to $e a presumption in many states that 6children8 meant 6children in wedloc%8 for rihts
i) from child"s perspecti#e! this is an immutable characteristic
c) the stronest arument that states ha#e for defendin such classifications in#ol#es the identification of the
father
2) Me!tal Retar$ati!
a) Cle@ur!e v. Cle@ur!e Livi!2 Ce!ter (138D) (p.C33)
i) Facts: =ity denied permit for operation of roup home that would ha#e $een for the mentally retarded.
0eih$ors complained $1c they didn"t want it in their neih$orhood.
ii) .oldin: the 7.=t. thin%s that this is !t a 0u0/e%t %la00i&i%ati! $ut determines that the ordinance isn"t
#alid. -here was no leitimate purpose to only re*uire permits for mentally retarded. -he 2ver!i!2
0ta!$ar$ i0 rationality! not suspicious or *uasi9suspicious.
(1) the =t. said that we should not $e enerally suspicious of separate classifications for the mentally
retarded $1c: there are real differencesI these differences create certain pro$lems that need to $e dealt
withI o#t. aencies are enerally trustworthy when dealin with these aencies.
(2) =t. says that e#en if this case falls into rational9$asis re#iew! the Plai!ti&& 0till .a0 t.e @ur$e! &
/er0ua0i! t 0.8 t.at t.at /li%# 8a0 @a0e$ ! a $e0ire t .ar' t.e 'e!tall# retar$e$.
(a) ? met that $urden in this case there was no
iii) t.i0 %a0e re/re0e!t0 a $iver2e!%e &r' r$i!ar# rati!alit# revie8 Brationality re#iew enerally
means deference , yet here there was not the con#entional deference to political &udment as there would
$e with min. rationality re#iew
(1) this loo%s more li%e heihtened rationality scrutiny than minimum rationality scrutiny
i#) .ow could the city protect its interests in the future(
(1) Be don"t want any more homes for the mentally retarded in the city '%uali(e in either direction&
(a) -ie the interests of the less ad#antae to the most ad#antae.
($) 0o more roup uses in any of these neih$orhoods.
(c) 7et up scheme of special permits for allM
3) SeCual Orie!tati!
a) Nenerally
i) Sta!$ar$ & Revie8 , =t. has not decided whether this is suspect or *uasi9suspect
ii) Bhat if =on. amends =+A to include se)ual orientation and then a few years later repeals , is it
unconstitutional to repeal( :i%ely unconst. no loner o#t. inaction , o#t. can"t act out of $are desire
to harm roup under Romer
$) R'er v. Eva!0 ()99:- (p.H44)
i) Facts: Amendment to =olorado constitution which prohi$ited any o#t. action that would enact! adopt! or
enforce any ordinance or policy where$y homose)ual or $ise)ual orientation or conduct could $e the
$asis for any claim of minority status or claim of discrimination.
ii) 'ssue: ;o prohi$itin laws that protect homose)uals from discrimination #iolate e*ual protection(
iii) .oldin: Jes. the 7.=t. found the amendment unconstitutional , no rational $asis for the classification.
=ourt says that law is the result of a!i'u0 , the state can ha#e no interest $ut animus in this wholesale
approach. But rejects heightened scrutiny and a//lie0 t.e rationality test&
(1) the amendment denies to homose)uals the same protections that are e)tended to other roups and
nullifies e)istin protections at all le#els of o#t.
(2) e#en if there was a leit. state interest reardin certain elements of the pac%ae! the $readth and
scope of the pac%ae as a whole is too $road and $ased on pre&udice
i#) there is not a word in +omer a$out homose)uality $ein a suspicious classification , the ct. is worried
a$out the military and marriae here
1C
(1) o#t. would ha#e a different $urden of proof if this was a suspect classification
#) ;issent (7calia): Amendment prohi$its special treatment of homose)uals and nothin more.
#i) )otential arguments on both sides:
(1) 'f the states can outlaw certain conduct of people of the same se) (Bowers #. .ardwic%)! then it can
leislate reardin people of that class who enae in the conduct (7calia) , lots of pro$lems with
this arument
(2) -he law is on the $asis of se)ual orientation which should $e a suspicious classification so should
$e su$&ect to strict scrutiny. -his law undermines the e*ual protection participation of this class $1c
the state constitutionali>ed the limitation. (:upu doesn"t li%e this one $1c it happens whene#er the
state constitutionli>es anythin
(3) the state shouldn"t $e a$le to put matters such as this to a referendum $1c people ha#e their own
$iases and pre&udices (this arument is wholly anti9democratic)
#ii) 's se)ual orientation a suspicious classifyin trait(
(1) First *uestion is this a roup that has $een e)posed to pre&udice and antipathy(
(2) 7econd *uestion is se)ual orientation #isi$le( is it immuta$le(
(a) it is not #isi$le and it is up for de$ate whether or not it is immuta$le
(3) 's se)ual orientation rele#ant to a$ility to perform certain &o$s! etc.( 0o.
(4) the case is a pretty powerful one for ma%in it a suspect classification.
c) Marria2e
i) 0ot formally discrimination $ased on se)ual orientation , written in terms of male1female
ii) it is not de &ure discrimination $ased on se)ual orientation , $ut it is de facto &ust li%e in Fa #. :o#in
d) Militar# , A)clusion of those who manifest homose)uality $y word or deed
i) it is enouh to manifest a particular state $y %!$u%t! words
(1) no loner a$out 0tatu0 no loner arued that it"s a pro)y for a$ility to do the &o$
ii) *ould the military prevail under rationality review+
(1) rationality re#iew $ased on means9end relationship , what"s the relationship(
(a) ad#erse reaction ($ut could ha#e a ender9neutral non9touchin rule)
($) #iolence
(c) $ut not really different from interatin armed forces
iii) Bould military sur#i#e under suspicious classification re#iew(
(1) $urden is shifted $ut national security more deference (Korematsu) , $ut perhaps would ta%e a
closer loo% if the e)clusion is so irrational
+omer and =le$urne are fre*uently paired toether as e)amples of cases where the 7.=t. would or would not
0tret%. rati!alit# revie8 to reach a particular result , it doesn"t et stretched in +omer! $ut it does in =le$urne.
Burden 7witchin under the ;ifferent 7tandards of +e#iew:
o @nder 7uspicious =lassifications17trict 7crutiny
.ih pro$a$ility that state"s moti#ation has discriminatory purpose! and we"ll flush it out with 7trict
7crutiny.
?resume it has $ad moti#ations! and we"ll ma%e them pro#e not.
o 'ntermediate re#iew
Aain! switch the $urden to the stateM pro#e it to us! that it"s necessary.
o +ationality re#iew
$n the ordinary case% we presume no bad motive% and so% we put burden on challenger to show no
plausible legitimate purpose to do so.
'n +omer this is successfulI 'n =lea$urn , somethin a$out the fact in =lea$urn! that the
court is willin to tihten up rationality re#iew. 7tretchin is o$#ious.
1H
E. Di0%ri'i!atr# Pur/0e a!$ E&&e%t< T.e Pur/0e B Di0/arate I'/a%t Di0ti!%ti!
1) Jic% Bo #. .op%ins (188C) (p.H13)
a) Facts: 'f want to operate a laundry in a wooden $uildin! need a permit. -he $oard ranted permits to all $ut
one non9=hinese applicant! $ut none to the 244 =hinese applicants. A =hinese alien who operated a laundry
w1o a permit was imprisoned.
$) .oldin: 7.=t. says that it doesn"t matter whether this type of discrimination is on the face of the law or
under the surface this is unconstitutional.
i) this case is $efore strict scrutiny
c) ?rinciple: this case esta$lishes the rule that covert racial discrim. is as eually unconstitutional as overt
racial discrim.
i) the $urden of proof in these type of cases is #ery difficult , it is on ? to show a pattern star% enouh to
ma%e a prima facie case
ii) ordinarily! in situations of non9randomness this is #ery difficult to pro#e! $ut in situations of randomness
(li%e &uries) it is a $it easier.
d) the remedy here is o#erturnin his con#iction , this case is easy to remedy $ut many are not so easy
2) ,an race ever play a part in law enforcement decisions+
a) o%ay in description of a particular suspect , not in#idiousI would $e inefficient to e)clude the info
$) race9out9of9place arument
i) may$e we are more worried a$out the a$use of race than the use of face
3) ?almer #. -hompson (13H1) (p.H1D)
this case deals with policy that seem to ha#e racially neutral &ustification $ut seem to $e partially moti#ated
$y racial reasons
a) Facts: Lac%son! /iss. closed swimmin pools after effort to desereate! citin safety reasons , feared ci#il
disorder. 7uit filed assertin racial moti#ation in closin of pools. -here is e#en9handed application and
impact.
$) .oldin: =onstitutional. =t. says that the court is not oin to o#erturn a case where it could $e &ustified on
racially neutral rounds. -here is no racial in&ury here. Bon"t loo% at reasonin of decision9ma%ers if e#en9
handed application. (-his is li%ely not ood law after Bashinton #. ;a#is)
i) this case says! in effect! that the court does not want to hear proof of racial moti#ation when it is one of
many possi$ilities f what miht $e a racially neutral policy
4) Wa0.i!2t! v. Davi0 ()9,:- (p.H1H)
a) Facts: Blac% applicant to the ;= police force who had failed the ci#il ser#ice e)amination $rouht an e*ual
protection challene $ecause a hiher percentae of $lac%s failed the e)am than whites. -hey alleed that the
e)am was discriminatory in effect! $ut they did not allee that the discrimination was purposeful.
$) 'ssue: 's disparate racial impact alone enouh to esta$lish a #iolation of e*ual protection(
c) .oldin: 0o. T.e %t. 0a#0 t.at t.e %!0tituti! i0 %!%er!e$ 8it. la80 t.at are 'tivate$ @# a
$i0%ri'i!atr# purpose.
i) the ct. does not want to import -itle F'' 6impact8 measures into the constitution (w1 -itle F''! need to
only show disparate impact! not discriminatory moti#e , $urden is on ? to show impact $ut then $urden
on state to show the necessity of the policy and that the same desired oal couldn"t $e achie#ed in a less
impactful way)
(1) the ct. is afraid that the $urden would $e shifted to the o#t. not only in this area if it were imported
into the constitution $ut that it open up the doors to e#erythin $ein challened since someone
would $e affected disparately $y e#ery policy.
D) +oers #. :ode (1382)(p.H2C)
a) Facts: +ural Neoria county , $lac%s ma%e up D3.CP of the population $ut only 38P of the reistered #oters
are $lac%. -he county has D commissioners! each of whom is elected at9lare and the county has ne#er $een
di#ided into districts. Aach candidate for commissioner runs for a specific seat on the $oard and the #oters
18
may only #ote once for any i#en seat. 0o $lac% candidate has e#er won. 7uit is $rouht on rounds that the
system of at9lare #otin #iolates the constitutional rihts of $lac%s $y dilutin their #otes.
$) 'ssue: =an at9lare! multi9mem$er #otin systems unconstitutionally dilute the #otin strenth of some
#otes(
c) .oldin: Jes. At9lare #otin schemes in multi9mem$er districts tend to minimi>e the #otin strenth of
minority roups. Bhile not unconstitutional per se! this will #iolate the 14
th
amend. if it is implemented or
maintained with the intent of dilutin the #ote of racial minorities. -he 7.=t. says that t.i0 0#0te' .a0 @ee!
maintained &r ra%iall# i!vi$iu0 /ur/0e0.
i) the ct. says that there was no in#idious purpose at the time of enactment (no $lac%s #otin in 1311) $ut
o#er time it $ecame in#idious , to preser#e white control
d) Best way to understand this case:
i) this is a case from the 7outh where there is a deep history of racial discrimination
ii) especially in this specific county there is a social system of caste
iii) this is a$out who is in %!trl o#er the future distri$ution of ood and ser#ices
(1) this is =aroline F04 (2) meets =aroline F04(3) , su$stanti#e rihts a$out su$stanti#e political input
(2) part of what is oin on here is that this is a disparate election system $ased on race and the only
way to chane it is to chane the politics of the county , different from the #er$al test in Bashinton
#. ;a#is.
e) this case suests! $ut doesn"t say directly! that perhaps when the o#t. is responsi$le for the impact! then the
ct. will apply the impact model
C) Arlinton .eihts #. /etropolitan .ousin =orp. (13HH) (p.H21)
a) Facts: A challene to a =hicao su$ur$"s refusal to rant a re*uest to re>one certain property from a sinle9
family to multiple9family classification. A nonprofit de#eloper planned to $uild federally su$sidi>ed housin
units in a larely white su$ur$ so that low income tenants! includin mem$ers of racial minorities miht li#e
there.
$) ;ecision: -he ct. found no showin of unconstitutional $eha#ior and reaffirmed the *ashington v& -avis
principle that official action will not be held unconstitutional solely b&c it results in a racially
disproportionate impact.
i) the =t. ela$orated on the 6su$&ects of proper in*uiry8 in determinin whether an unconstitutional
discriminatory purpose e)ists. -he =t. said that there are ways of pro#in racial discrim. in such cases:
(1) the impact of the decision ($ut ordinarily impact will not $e dispositi#e proof of $ad purposes)
(2) historical circumstances , what is the $ac%round of the decision( ;oes it emere out of a history of
racial animosity( (e.. ?almer #. -hompson)
(3) is this a substantive departure from prior policies(
(4) procedural irregularities in the $eha#ior of the decision9ma%er
(D) contemporaneous statements $y decision9ma%ers
(C) e"amination of the subjective motives of the decision9ma%ers ($ut this will only $e utili>ed in
e)ceptional cases).
ii) I& #u are a@le t 'a6e a /ri'a &a%ie %a0e t.at a $e%i0i! 8a0 tai!te$ @# ra%ial $i0%ri'i!ati!D t.e!
t.e burden of proof shifts t t.e $e&e!$a!t t re@ut t.e /re0u'/ti! & u!%!0tituti!al a%ti! a!$
0.8 t.at t.e ra%ial tai!t 8a0 a 0rt & .ar'le00 errr a!$ t.at t.e# 8ul$ .ave 'a$e t.e $e%i0i!
a!#8a#.
iii) Bhy isn"t strict scrutiny appropriate here(
(1) when you ha#e a decision that is neutral on its face! you may ha#e a decision that is #alid for other
reasons had it not $een tainted , some of these policies may $e leitimate and meritorious.
(a) Be don"t put policies that are neutral on their face to strict scrutiny li%e we do for o#ertly racial
policies.
($) 't may $e that the innocent moti#ation may $e sufficient to sustain the policy in a mi)ed moti#e
situation.
H) ?ersonnel Administrator of /ass. #. Feeney (13H3) (p.H23) (racial purpose and se) discrimination)
13
a) ;ecision: the =t. re&ected a se) discrimination claim challene to a /ass. law rantin 6a$solute lifetime8
preference to #eterans for state ci#il ser#ice positions! e#en thouh the preference operates o#erwhelminly
in fa#or of males.
i) the ct. says that when a statute is 2e!$er-!eutral ! it0 &a%e and is challened on the rounds that it has
a disproportionate effect on women! a t8-&l$ i!Auir# is appropriate:
(1) First! whether the statutory classification is indeed neutral in the sense that is not gender#based.
(2) 'f the classification itself! o#ert or co#ert! is not $ased on ender! then need to as% whether the
ad#erse effect reflects invidious gender#based discrimination.
$) t.i0 %a0e 0.80 t.at t.e $i0%ri'i!atr# /ur/0e .a0 t @e t.e $e0ire t $ 0'et.i!2 because & it0
.ar'&ul e&&e%t0 , that it was done for the reason of harmin that roup.
F. A&&ir'ative A%ti!
1) A!te%e$e!t0< T.e Pat. t "a66e
a) Freedman"s $ureau , o#t. a#e land to freed men post9sla#eryI land re9distri$ution
$) school desereation cases in districts where there had $een de &ure sereation! it is not enouh to &ust
desereate! must ta%e affirmati#e steps to interate (ha#e to $e race9conscious a$out who oes to school
where)
2) Re2e!t0 & U!iver0it# & Cali&r!ia v. "a66e ()9,*- (p.HD2)
a) Facts: A medical school denied admission to a white applicant e#en thouh he had a $etter N?A! /=A-
score! and $enchmar% score than minority applicants who were admitted throuh a special admissions
proram. -he med school at @= ;a#is reser#ed 1C out of 144 spaces in its enterin class for minorities and a
special committee was esta$lished to administer this proram.
$) 'ssue: ;oes it #iolate e*ual protection for a state school to prefer! solely on the $asis of race minority!
applicants who are seeminly less *ualified than white applicants(
c) ;ecision: (?owell) Jes. -he admissions prorams of state schools may achie#e di#ersity in the student $ody
$y considerin the race of its applicants among other factorsI howe#er! race may not $e the only factor used
to measure di#ersity.
i) 0o one concurs with ?owell"s opinion and his 6lawful uses for race8 $ut he ets four concurrences
statin that the admissions proram is unlawful and that Ba%%e must $e admitted. And he ets another
four concurrences re#ersin the state supreme court"s in&unction aainst ;a#is from accordin any
consideration to race in its admissions process.
ii) ?owell says that Title .$ of the ,ivil Rights Act is co-e"tensive with the e%ual protections clause if
somethin is permissi$le under e*ual protection then it is permissi$le under -itle F'. -hey are the same.
(1) if this e*uation adheres! then whate#er the rule is reardin affirmati#e action in state uni#ersities
will apply to all pri#ate uni#ersities that et some federal fundin (which is #irtually all)
(2) -itle F'' (employment) has $een held to permit #oluntary affirmati#e action i#es room to pri#ate
employers to $e race9conscious in ways that the e*ual protect clause does not i#e to pri#ate
employers. , interestin &u)taposition of -itle F' and -itle F'' , different relationships to e*ual
protection clause
(a) -itle F'' incorporates the impact theory! -itle F' does not
iii) Mai! Gue0ti! Bhat should the standard of review $e( (should it $e the same when minorities are
fa#ored as when they are disfa#ored()
(1) ?owell says that he would re*uire strict scrutiny
(a) are the o$&ects %'/elli!2 e!u2. to &ustify the race9conscious policy(
($) are the means chosen !arr8l# tailre$(
(c) ($ut what a$out =arolene F04. para 3 a$out politically powerless roups()
i#) ?oints raised $y ?owell which still dominate:
(1) there will $e some #ersion of 0tri%t 0%ruti!# that will $e applied
(2) the oals of affirmati#e action prorams reardin race as a pro)y will always fail
(3) 8.e! ra%e i0 !t a /rC#D t.e0e .ave a %.a!%e<
24
(a) remedial , when race relates directly to the remedy
(i) 'f you are oin to use remedial &ustifications! then there 'u0t @e a &i!$i!2 & past
discrimination made $y cts1admin. aencies1 leislatures , uni#ersities are not competent to
find this. Findin it is a prere*uisite to race9conscious remediation. Findins must also
identify WHO did the discriminatin.
($) racial di#ersity , then race will fit tihtly with the idea of racial di#ersity
(i) ?owell says that di#ersity can $e a compellin state interest , (.ar#ard plan) , so lon as
race is one factor amon many and that people can compete for all the spaces! it is alriht to
use race
9 KK NteKKK - Title ;I L Title ;II B F' pro#ides to anyone recei#in federal assistance (pri#ate E
pu$lic). 4 &ustices (ste#ens! $urer! stewart! and rehn*uist) they say F' says you can"t use race to
e)clude someone from a proram! so Ba%%e should end at F'! no need to reach constitutional *uestion.
?owell says -F'' is co9e)tensi#e with A*ual ?rotection =lause! whate#er the A? clause protects so does
-F' , -F' disappears into the e*ual protection clause. 'f e*ual protection clause is construed to $e less
than $a%%e! whate#er it for$ids! will $e for$idden $y anyone recei#in federal financial recipients.
?ri#ate schools affected to the same e)tent as pu$lic school.
o Title ;II B Be$er #. @nited 7teelwor%ers , -F'' permits #oluntary race conscious hirin
practices $y pri#ate employers. 7o! is there a &ustification for different treatment of - F'' , not
co9e)tensi#e with e*ual protection clause.
3) Byant #. Lac%son Board of Aducation (138C) (p.HCC)
a) Facts: teacher layoffs w1 minority teachers protected , white teacher w1 more seniority laid off.
$) ;ecision: (?owell) Rnot a ma&ority opinionS =ourt says this is unconstitutional , not ood enouh to satisfy
stricter standard of re#iew.
i) A couple of important thins from this case:
(1) a num$er of &ustices re&ect the idea of rle '$eli!2 &r 0tu$e!t0 as a compellin interest
(2) there is an emphasis here on $i0'i00al5&iri!2 the e)tent of the $urden on innocent whites is
reater in a dismissal case as opposed to an admissions1hirin case. -his is a non9diffuse $urden on
whites.
4) Fullilo#e #. Klut>nic% (1384) (p.HC8) (=ontract case)
a) Facts: 14P of federal funds ranted for local pu$lic wor%s pro&ects set aside for minority contractors
$) ;ecision: (Burer) =t. says that this is constitutional. -he 14P set9aside is o%ay when =onress does it.
i) the findins upon which the set9aside was $ased were flimsy $ut the =t. i#es a lot of deference to =on.
(1) there is no way to %now to what e)tent particular minority roups will purse different trades
(2) sloppily put toether statute , raises *uestions a$out the interity of the policy
(3) how do we %now who is a mem$er of this roup(
ii) the %ey to the outcome is that it is:
(1) =on. that is actin with respect to state and local acti#ity
(a) =on! has special power under 7ec. D of the 14
th
to identify instances of discrim! and to remedy
them
($) it is enough to show a general pattern of discrimination and some reasonable connection b&w
the pattern and the remedy (this eneral power thouh has tended to $e shrin%in o#er the last
se#eral years $y the =t.)
c) 7ome $asics a$out contractin cases:
i) they"re a$out firms! not a$out indi#iduals , minority firms. Bhat does it mean to $e a minority firm(
ii) set9asides (Fullilo#e and =roson) ha#e a conspicuous and measura$le ap $1w the low $id and the low
minority $id the costs are measura$le1*uantifia$le
D) Ri%.'!$ v. =.A. Cr0! C. ()9*9- (p.HH4)
a) Facts: +ichmond adopted a minority set9aside proram where$y it insured that at least 34P of the money
from city construction contracts went to minority9owned $usinesses.
21
$) 'ssue: ;oes a city #iolate e*ual protection when it uarantees minority9owned $usinesses 34P of certain city
contract $usiness solely $1c of the race of their owners(
c) ;ecision: Jes. State a!$ l%al 2vt0. %a!!t $i0%ri'i!ate ! t.e @a0i0 & ra%e u!le00 t.e# %a!
$e'!0trate t.at t.eir %la00i&i%ati!0 are !arr8l# tailre$ a!$ !e%e00ar# t a%.ieve 0'e %'/elli!2
2vt. i!tere0t the ct. ma&ority adopts strict scrutiny as the standard of re#iew.
i) ct. notes that state and local o#ts. don"t ha#e the mandated power to enforce the 14
th
amend. , that"s
why this is different from Fullilo#e where there was deference to =on. findins , $ut notes that state
and local o#ts. can ta%e positi#e steps if they show a compellin interest and narrowly tailored
(1) the 34P set9aside here doesn"t stand a chance
(2) di#ersity is not a compellin interest in contractin cases ((((()
(3) the findins here are e#en thinner than in Fullilo#e , careful reflection not apparent from the list of
races $enefited. 0o e#idence of past discrimination , only asserted.
C) /etro Broadcastin #. F== (1334) (p.H84)
a) ;ecision: (Brennan) court D94 says intermediate scrutiny is the correct standard of re#iew
$) ;issent: <"=onnor says se#eral important thins in the dissent:
i) whate#er weiht =on"s power under 7ec. D of the 14
th
amend. deser#es! this is not a sec. D case , the
states are not in#ol#ed. -his is a$out =on. and the F==. 'n this case! =on. has no specific rant of
power here so there is no special reason to defer to =on.
ii) strict scrutiny is the riht rule
(1) it re*uires compellin interest! not &ust important interest
(2) the only interest the ct. has said e#er satisfied compellin interest for race9specific policies is
remediation and this is not a remediation case. Si2!al t.at diversity i0 !t a %'/elli!2 i!tere0t.
c) T.i0 %a0e i0 O;ERTURNED 0.rtl# a&ter
H) A$ara!$ C!0tru%tr0 v. Pe!a ()99+- (p.H8C)
a) Facts: 7u$contractor Adarand"s low $id in a federal pro&ect was re&ected $1c of a federal racial classification.
-he o#ernment"s contract with the contractor pro#ided that the contractor would recei#e additional
compensation if it hired su$contractors that were controlled $y 6socially and economically disad#antaed
indi#iduals.8 -he contractor awarded the su$contract to Non>ale> $ut would ha#e awarded it to Adarand had
it not $een for the additional payment.
$) 'ssue: Are federal racial classifications su$&ect to strict scrutiny re#iew(
c) ;ecision: (<"=onnor) Jes. 'trict scrutiny i0 t.e 0ta!$ar$.
i) there is no decision on the facts here , the ct. does not find the proram unconstitutional
ii) o#errules /etro Broadcastin
iii) -hree propositions $y <"=onnor that she wants to emphasi>e re: racial classifications:
(1) S6e/ti%i0' , there must $e a 6most searchin e)amination8 (i.e.! strict scrutiny)
(2) C!0i0te!%# , it doesn"t matter whether minorities are fa#ored or disfa#ored
(3) C!2rue!%e , the rules are the same for =on. and the states , it is the same reardless of who is
actin. (o more deference to )ongress.
(a) (:upu) $ut =on! and the national o#t. will always $e in a $etter position to identify
discriminatory trends across the country in national mar%ets.
8) A&ter'at. & A$ara!$
a) A)ecuti#e Branch , e)amination of e)ec. prorams to see which affirmati#e action prorams would
withstand strict scrutinyI those that couldn"t were eliminated
$) Fed. o#t. prepared a 6compellin interest8 reulation , documentin discrimination in #arious mar%ets
relatin to o#t. contracts
c) the proram challened in Adarad on remand was determined to satisfy the standard set forth in Adarand.
3) Nrutter #. Bolliner (2441) (H
th
=ir.)
a) 'ssues: what is the uni#ersity"s interest in the proram( 's it sufficiently important( is the proram narrowly
tailored to that interest(
22
$) ;ecision: -he proram is constitutional.
i) -he uni#ersity"s interest is the 6ro$ust e)chane of ideas and di#ersity in the leal profession , racial
interation will this.
ii) -he cost of race neutrality is to dri#e the minority percentae at @/ich law school from 14P to 3P
chanes con#ersations in class! community leaders in future
iii) the ma&ority says that the proram is narrowly tailored
c) ;issent , arues that the proram is not narrowly tailored and that the proram i#es race too much weiht.
;issent says that if Nrutter had $een a minority she would ha#e $een admitted.
;. SU"STANTI;E DUE PROCESS AND THE RIGHT OF PRI;AC>
A. Preli'i!ar# Ca0e0
1) /eyer #. 0e$ras%a (1323) and ?ierce #. 7ociety of 7isters (132D)
a) these cases rested on the constitutional theory of the common law rihts of parents (not on the $asis of the
first amendment) , this was a $road readin of li$erty resultin in :ochner9es*ue in#alidatin of state
reulations. But these cases ha#e $asically $ecome 1
st
amend. cases , familial association rihts and the riht
of parents to transmit %nowlede.
2) 7%inner #. <%lahoma (1342) (?rocreation)
a) Facts: <K has a law that if you are con#icted 3 times or more for specific crimes you are su$&ect to
compulsory sterili>ation. -he theory of the law is inherent criminality.
$) ;ecision: -he ct. here says! in an e%ual protection conte"t! that /r%reati! i0 a @a0i% %ivil ri2.t the law
is unconstitutional.
i) the ct. does not frame this as a su$stanti#e riht $ut as a comparati#e riht. -he ct. frames procreation as
a $asic ci#il riht deser#in special &udicial concern
ii) the court effecti#ely separates reproduction from marriae here
iii) the pro$lem with the law here is that it co#ers some offenses and not others , focuses on $lue collar
crimes
3) Gri08l$ v. C!!e%ti%ut ()9:+- (p.D14)
a) Facts: the director of ?lanned ?arenthood! arrested for pro#idin ad#ice to married couples in #iolation of a
non9contraception statute! contends that the statute #iolates the 14
th
amend. -he state"s rationale was that the
statute was intended to outlaw e)tra9marital affairs.
$) 'ssue: 's there a constitutional riht to pri#acy which is protected from o#t. intrusion(
c) ;ecision: (;oulas) Jes. A ri2.t t /er0!al /riva%# e'a!ate0 &r' t.e /e!u'@ra0 & t.e "ill & Ri2.t0D
a!$ it %a!!t @e i!va$e$ a@0e!t a 0.8i!2 t.at t.e le2i0lati! i0 !e%e00ar# t a%%'/li0. a %'/elli!2
0tate i!tere0t.
i) the pri#acy of the home is the um$ra of the 3
rd
and 4
th
amendments , peripheral rihts i#e su$stance to
specific rihts
ii) this was a sprin$oard for riht to pri#acy , ;oulas wants to ma%e Nriswold a Bill of +ihts case , $ut
it is hard to connect these #alues to Bill of +ihts that"s why ha#e penum$ras and emanations
(1) ;oulas was committed to full incorporation of Bill of +ihts
d) =oncurrence: (.arlan) -here is somethin wron with this $ut it is not a $ill of rihts matter. -he correct
in*uiry is whether the statute infrines on ;ue ?rocess =lause $1c it #iolates $asic #alues implicit in the
concept of ordered li$erty.
i) =-"s contraception statute is an intolera$le in#asion of pri#acy in the conduct of the most intimate
concerns of an indi#idual"s life. 'n order to $e const.! the statute must pass strict scrutiny.
ii) .arlan #iew of traditional rihts that state law has traditionally protected , .arlan says that there is a
difference $1w those matters of se)uality that the state traditionally reulated (sodomy! etc.) and this law
aainst contraception which the state has not traditionally reulated
(1) this theory of due process will $e #ery important post9+oe
23
(2) pro$lem w1 this #iew is that! in theory! could $e used to $loc% emerence of new law as much as it is
used to et rid of old law as in this case
4) Aisenstadt #. Baird (13H2) (p.D24)
a) ;ecision: the court o#erturned a con#iction under a law $annin the distri$ution of contracepti#es to
unmarried people. =t. said that this is a #iolation of e*ual protection , discrim. $1w married and unmarried
persons
i) there is no reason for this distinction , the e)ercise of the riht to procreation is an indi#idual thin! not
$elonin to couples
ii) the framewor% that Nriswold sets up re: marriae and traditional rihts ets $lasted away
". Re/r$u%tive Priva%# a!$ Aut!'#
1) Re v. Wa$e ()9,3- (p.D21)
a) Facts: A prenant woman challened a -e)as law that prohi$ited a$ortion unless the woman"s life was in
daner.
$) 'ssue: ;oes a prenant woman ha#e a constitutional riht to terminate her prenancy in its early staes(
c) ;ecision: (Blac%mun) Jes. -he law is unconstitutional. Blac%mun points to riht of pri#acy.
i) this court says that the riht of pri#acy is fundamental! stemmin from 14
th
amend. concept of personal
li$ery , procreation is a fundamental constitutional right , the riht of pri#acy e)tends to procreation!
to prenancy and the continuation of prenancy
ii) "utD t.e ri2.t t /riva%# i0 !t a@0lute , it !ee$0 t @e 8ei2.e$ a2ai!0t 0tate i!tere0t0 state
needs to ha#e compelling interest and the means has to $e narrowly tailored to that interest.
(1) this is how we end up with the trimester system , this decision thouh ma%es t.e &ir0t tri'e0ter i0
u!re2ula@le.
(2) state interests
(a) mother"s health , state can reulate mother"s health only after start of 2
nd
trimester (this part
does not sur#i#e later cases)
($) state interest in life of fetus $eins at via@ilit#
iii) ct. determines that the fetus is not a person under due process
d) Lustifyin +oe #. Bade:
i) miht +oe ha#e $een more persuasi#e $ein arued as se) discrim. case( , li%ely not. /ichael /. tells
us that 6physical differences8 not similarly situated. 0ot clear that could ha#e come to same result
under se) discrim.1intermediate scrutiny
ii) notion of riht of pri#acy , particular attri$utes essential to $ein a person and its lin%9up with
procreati#e choice
iii) .arlan approach , traditional rihts! li$erties , hard to &ustify +oe on these rounds $1c most or many
states had laws that outlawed a$ortion.
2) 'n the wa%e of +oe! there are four $asic cateories of cases:
a) Gver!'e!t Fu!$i!2
i) the court says time and aain that the o#t. is not $urdenin a$ortion when it fails to su$sidi>e it , it is
only $urdenin it when it reulates
(1) the challeners unsuccessfully arue that the o#t. has to $e neutral $1w child$irth and a$ortion
(2) there is a hint in Be$ster (1383) that if the state closes pu$lic hospitals and there is nowhere else to
et an a$ortion! then there may $e an affirmati#e o$liation $y o#t.
$) Healt. Re2ulati! (also informed consent $y patient)
i) Bhen A%ron insisted on informed consent of patient reardin the $enefits of child$irth1non9a$ortion
choices and a 249hour waitin period the 7.=t. court held that this is unconstitutional $1c it was a
reulation of first trimester
ii) All second trimester a$ortions ha#e to $e performed in hospital! not outpatient clinic (A%ron '') , 7.=t.
said that the state cannot insist on thisI the state is permitted to reulate re: mother"s health $ut it must $e
narrowly tailored and this isn"t
24
iii) ct. suested that one of the ways of measurin whether a reulation was o#erly $road was to loo% at
customary medical practices
c) T.ir$ Part# Nti%e a!$ C!0e!t
i) -wo %inds : (1) spousal consent (2) parental notice1consent
(1) the only no#el issue in =asey was the spousal consent rule
ii) /issouri had spousal consent rule $efore =asey , 7.=t. said that can"t i#e hus$and an a$solute #eto ,
this would mean that $y ettin married a woman i#es up her constitutional riht
iii) ?arental notice , 7.=t. says that parental notification laws are o%ay as lon as the state pro#ides a &udicial
$ypass
d) Deter'i!i!2 ;ia@ilit#
i) 'n a #ariety of ways! states ha#e tried to reduce late 2
nd
semester a$ortions
ii) Be$ster #. +eproducti#e .ealth 7er#ices (1383)
(1) /issouri law 'f the physician $elie#es that fetus is 24 wee%s or older! the physician needs to do
certain tests to determine #ia$ility
(2) 7.=t. is di#ided , plurality opinion. =t. says that it will construe this as permittin the physician to
dispose with the tests if in his &udment the tests are irrele#ant to determinin #ia$ility
(a) the opinion challenes +oe trimester framewor%
3) Pla!!e$ Pare!t.$ & Sut.ea0ter! Pa. v. Ca0e# ()99E- (p.D3H)
a) Facts: ?lanned ?arenthood challenes a state law which re*uires doctors to dispense information to! o$tain
the informed consent of! and retain information a$out prenant women see%in a$ortions.
$) 'ssue: (1) 7hould the essential holdin of +oe #. Bade $e retained and reaffirmed( (2) 7hould +oe"s trimester
framewor% $e replaced $y an undue $urden standard(
c) ;ecision:
i) the 7.=t. reaffirms the essential holding of *oe that the via@ilit# & t.e &etu0 i0 t.e $ivi$i!2 li!e @58
8.e! a 0tate 'a# /r.i@it a@rti! a!$ 8.e! it 'a# !t.
ii) -he troi%a opinion says that re2ulati!0 ! a@rti! 0.ul$ @e te0te$ a2ai!0t a! u!$ue @ur$e!
0ta!$ar$ need to pro#e that the law poses a 0u@0ta!tial @0ta%le
(a) An u!$ue @ur$e! eCi0t0 i& t.e la870 purpose or effect i0 t /la%e a substantial obstacle i! t.e
/at. & a 8'a! 0ee6i!2 a! a@rti! @e&re t.e &etu0 attai!0 via@ilit#. As lon as it does not
create an undue $urden! a state may ta%e measures to ensure that the woman"s choice is
informed and it may enact reulations to further the health and safety of the women see%in the
a$ortion.
(2) the reulations dealt with in this case:
(a) Spousal /otice , Rre*uired women to sin document sayin they had notified their hus$andsS
the troi%a considers this an undue burden. -he troi%a says that this pro#ision will either force
women who don"t want to tell their hus$ands to lie or to o to a $lac% mar%et a$ortion clinic.
A#en if you e)pand the pro#ision to include women who are afraid of coercion they may $e
afraid that cops will o after hus$and.
($) $nformed ,onsent , Rlaw re*uired women to come in twice , once to et materials and then
aain 24 hours laterS the troi%a says that this is not an undue burden $1c it facilitates the
wise e)ercise of the riht.
C. Fa'il# Relati!0.i/0
1) Ta$loc%i #. +edhail (13H8) (p.DD3)
a) Facts: Bisconsin law prohi$itin marriae for people who had minors not in custody to whom they owed
child support.
$) ;ecision: 7.=t. said that this is unconstitutional , can"t create an impediment to marriae alon these lines.
2D
i) the case was analy>ed in terms of 6fundamental rihts8 strand of e*ual protection
a lot of family cases can $e #iewed as either e*ual protections or due process9pri#acy cases
o unli%e procreati#e choice where the people are sayin lea#e us alone! marriae is a$out enterin into a
leal relationship with the state , the la$el of pri#acy doesn"t wor% really well with marriae
;oes the state ha#e to satisfy 0tri%t 0%ruti!# or can the state o a$out it in another way(
o Traditional rights vs& innovative rights , there is a theme of traditional li$erties , we"re not oin to let
the state tin%er w1 that set of concerns , $ut if the state is reulatin in the traditional way and not really
doin anythin new then we"re oin to let the state proceed
D. SeCualit#
1) "8er0 v. Har$8i%6 ()9*:- (p.DC8)
a) Facts: A homose)ual male! who had $een chared with $ut not prosecuted for pri#ate se)ual acts! sued to
challene the constitutionality of a law prohi$itin sodomy.
$) 'ssue: 's homose)ual sodomy a fundamental riht protected $y the ;ue ?rocess =lause(
c) ;ecision: 0o. H'0eCual 0$'# i0 !t a ri2.t /rte%te$ @# t.e $ue /r%e00 %lau0e a!$ 0tate0 'a#
%!0tituti!all# /r.i@it 0u%. %!$u%t.
i) if this is not a fundamental riht! then the law only needs to meet the minimum rationality standard ,
leislati#e interest
(1) the ct. says that it does meet min. rationality the state arues that it is a moral choice.
ii) the court frames the issue as whether or not there is a fundamental riht to enae in homose)ual
sodomy , the statute is not this narrow thouhI it applies to all sodomy
it is arua$le that Nriswold esta$lished se)ual pri#acy as well as procreati#e pri#acy for married couples
:upu thin%s that if +oe was decided correctly! then Bowers must $e decided wronly
d) Steve!07 Di00e!t: (:upu thin%s this is the most important part of the case)
i) 7te#ens is tryin to ma%e the e*ual protections clause do the wor% , says that under Nriswold married
people ha#e the riht to enae in sodomy. 'f that is the case! then it is e)tended to heterose)ual people
under Aisenstadt! +oe.
(1) the *uestion then $ecomes whether the state could prohi$it the act as enaed in $y mem$ers of the
same se)( 7te#ens says that the court"s prior decisions demonstrate that the fact that the o#ernin
ma&ority in a state has traditionally #iewed a practice as immoral is not a sufficient reason for
upholdin a law prohi$itin the practice.
(2) A policy of selecti#e application must $e supported $y a neutral and leitimate state interest , there
is no $asis for applyin the law only to homose)uals
ii) what is at sta%e here is the riht to intimate association , this $rins it within the whole line of cases re:
su$stanti#e due process , whereas the way the ma&ority frames the issue is #ery different
Fermont has ci#il unions , can et material $enefits of marriae that are conferred $y state law
issue of same9se) marriaes is tied up 6full faith and credit clause8
o most states reconi>e marriaes from other states unless it contra#enes a stron pu$lic policy interest of the
state
6;efense of /arriae Act8
o =on. declares that no state has o$liation under the full faith and credit clause to reconi>e same9se)
marriaes
o for federal purposes! same9se) marriae does not *ualify as marriae
Bowers is not sufficient to &ustify a state"s $an on marriae is there anythin left to support the prohi$ition(
o state can say that it has an interest in procreation and child9rearin , pro$lem with this is that there are lots of
opposite9se) marriaes that don"t procreate , there is no policy of limitin marriaes to people who procreate
E. T.e Ri2.t t Die
2C
7tate law has four choices with su$stitute decision9ma%ers:
o decision9ma%er does what he thin%s is $est
o does what she would want them to do
o su$st. decision9ma%er not allowed to ma%e decisions li%e this unless it has $een e)plicitly authori>ed in
writin
o not let anyone authori>e this , only a competent patient can authori>e
1) =ru>an #. ;irector! /issouri ;ept. of .ealth (1334) (p.DHD)
a) Facts: =ru>an is in persistent! #eetati#e state. 7tate is relyin on su$stitute decision9ma%ers $1c she isn"t
competent. /issouri law had re*uirement of 6clear and con#incin e#idence8 of what she would want in
these circumstances.
$) 'ssue: does the constitution for$id the esta$lishment of this procedural re*uirement $y the state(
c) ;ecision: the =t. holds that the constitution does not for$id the state"s procedural re*uirement and says that it
won"t mandate a particular rule that states ha#e to follow
i) ct. notes that a competent person has a constitutionally protected li$erty interest in refusin unwanted
medical treatment
d) ;issent: (Brennan) =ru>an has a riht to die with dinity.
2) Wa0.i!2t! v. Glu%60@er2 ()99,- (p.DH8)
a) Facts: -erminally ill patients and their physicians sued to o#erturn a Bashinton law that prohi$ited any
person from causin or aidin in suicide.
$) 'ssue: 's a statute that $ans assisted suicide unconstitutional(
c) ;ecision: 0o. A @a! ! a00i0te$ 0ui%i$e i0 !t u!%!0tituti!al! either on its face or as applied to
competent! terminally ill adults who wish to hasten their deaths $y o$tainin medication prescri$ed $y their
doctors.
i) this is the arument assumed in =ru>an $ut there is an additional step , that people ha#e the riht to
refuse treatment and there$y ha#e the riht to control the time of their death (i.e.! accelerate their death)
d) the 3
th
circuit loo%ed to troi%a opinion of =asey , $ut were not respectin the line of di#ision in the
su$stanti#e due process cases (7outer doesn"t accept this line of di#ision either):
i) =an see two lines of cases in su$stanti#e due process:
(1) those a$out procreati#e choice
(2) those a$out traditional li$erties trump (Bowers! =ru>an! Nluc%s$er! etc.)
e) in the end what is oin on in Nluc%s$er is that all the &ustices aree that for the ct. to reconi>e a riht to
physician9assisted suicide would $e to open up a whole lot of trou$le that states could not police
i) fear that this could lead to an in#itation to families to %ill sic% elders $1c of medical costs or out of
compassion or $oth.
ii) also! how do you distinuish $1w people that are terminally ill and those that are not
f) despite the fact that all the &udes aree! there is still a $it of hedin
i) Breyer says perhaps there is a riht to die w1dinity that could $e compromised $y not reconi>in
this riht
ii) <"=onnor the case miht $e different if the state denied people the riht to sue pain9%illin drus at
the end of life
at the end of the day! it is awfully hard not to reconi>e rihts that are a$out you! $ut is easier not to reconi>e
rihts for people that are not li%e you.
;I. THE SECOND AMENDMENT
there is #ery little law reardin the second amendment
2H
the $est way to understand the second amend"s place in the constitution is to loo% at the use of force in the
oriinal constitution how did the const. loo% at use of force( how did it di#ide up $1w fed. o#t. and states(
1) -he way the oriinal constitution #iewed the use of force:
a) Art. 1 7ec. 8 , =on. has the a$ility to raise and support armies $ut no appropriations of money to that use
shall $e for loner than a term of two years (if funds for army ha#e to $e renewed e#ery two years! there has
to $e a renewal of consent)
$) Art. 1 7ec. 8 , pro#ide and maintain na#y
i) no time restriction here
ii) fed. army was thouht of as a danerI na#y wasn"t , na#y also re*uires lare capital e)penditures
c) Art. 1 7ec. 8 , =on. can call forth the militia
i) fed. o#t. may orani>e! arm! and discipline militias when they are called into ser#ice $y the @7 (see
state powers for militias riht $elow)
d) *here do the states fit in+
i) Art. 1 7ec. 14 , states can"t %eep troops or ships of war w1o =on"s consent
ii) Art. 1 7ec. 8 , state ha#e power of appointment of officers and trainin of the militia
(1) indi#iduals were o$lied to ha#e the arms to $e useful if called up $y the unorani>ed militia
2) E
!$
A'e!$'e!t , A well regulated militia0 being necessary to the security of a free state0 the right of the people
to keep and bear arms0 shall not be infringed&!
a) one theory emphasi>es role of the pream$le , that it is desined to ensure that =on. may not interfere w1
the ri2.t & a 0tate t $e&e!$ it0el& $y disarmin the men who the state relied on to ser#e
i) some state constitutions i#e the riht to $ear arms w1o the militia *ualification
$) another theory that the 2
nd
amendment! in addition to the militia reason! i#es the riht for people to $ear
arms for the /ur/0e & i!$ivi$ual /rte%ti!
3) ;id the 14
th
amendment transform the 2
nd
amendment(
a) o#er time there has $een selecti#e incorporation , 2
nd
amendment! thouh! has ne#er $een incorporatedI $ut
this was $efore anythin was incorporated
$) the oriinal militia statute restricted militias to white males does the 14
th
amend. e)tend the 2
nd

amendment to others(
4) @7 #. /iller (1333) (handout)
a) Facts: /iller was chaned with mo#in an unreistered sawed9off shotun on interstate commerce. -he
0ational Firearm Act said that when the weapon was transferred you need to pay O244. -he arument is
made in the district court that the Act #iolates 2
nd
amend. -he lower court said that the Act did #iolate the 2
nd

amend. -his case then comes $efore the 7.=t. only $riefed and arued $y the @7 , /iller fled.
$) ;ecision: (/c+eynolds) -here is ! E
!$
a'e!$'e!t vilati!.
i) -he ct. says that there is no reasonable relation $1w the sawed9off shotun and use in a militia! so it
does not fall under the 2
nd
amendment.
(1) implicit in the court"s wordin is the only thin we"re loo%in at with the weapons is whether they
would $e useful for the needs of a militia , t.e Ct. a00u'e0 t.at t.e E
!$
a'e!$. !l# $eal0 8it.
t.e %alli!2 u/ & 'ilitia 'e!.
(2) if it could $e shown that this shotun could $e used in a militia a prohi$iti#e ta) may #iolate the
second amend.
c) reistration for the fed. o#t. to %now where all the weapons are located , may pro#e pro$lematic in #iew
of 2
nd
amendment protectin indi#idual rihts.
d) -oes 1iller preclude a federal prohibition on handguns+
i) it could $e read that way , the suestion is that if there was a reasona$le relations $1w the weapon and
the militia that there could $e no prohi$ition on the riht to $ear the weapon.
D) 's there an arument that the 2
nd
amendment is an anachronism( ('f #iewed in connection w1 the militia theory of
the amendment)
28
a) militia"s don"t really e)istI there is now a federal armyI states ha#e orani>ed police and national uards
the need for pri#ate indi#iduals to $e armed for the purpose of ser#in their state has e#aporated
$) could arue in opposition that the state miht yet aain want a militia
c) when you e)pand the 2
nd
amend. to include indi#idual reason for $earin arms! then the arument that the 2
nd

amend. is an anachronism is #oided
C) @7 #. Amerson (D
th
=ir.) (2441) (handout)
a) Facts: ;i#orce proceedinsI durin the hearin /rs. Amerson alleed that Amerson threatened o#er the
phone to %ill the man with whom she"d $een ha#in an affair. +estrainin order issued aainst Amerson and
automatically! $y operation of law! he $ecomes someone who may not possess a firearm ($y federal law).
$) No#t. arument: ;<L too% the position that the riht to $ear arms applies only to those people in some state
force who are o$lied to $rin their own arms that only those people could assert a 2
nd
amend. riht
aainst any federal law that could $ar their possession of such weapons.
i) this arument isn"t really sound $1w the amend. contemplates $ein a$le to call on indi#iduals in an
emerency , they may not ha#e $een called on $efore
c) ;ecision: E
!$
a'e!$'e!t /rte%t0 @t. t.e %lle%tive 'ilitia ri2.t a!$ t.e i!$ivi$ual ri2.t t /rte%t
#ur0el&
i) it is not clear what standard of re#iew the court is applyin , the court finds a sufficient ne)us! thouh
$arely so! to &ustify the order
ii) *hat is the scope of rights under the 'merson holding+
(1) would pro$a$ly ma%e a federal law $annin ownin a re#ol#er unconstitutional under the 2
nd
amend.
(2) e#en if the 2
nd
amend. doesn"t apply , could arue that the riht to $ear arms is a traditional li$erty
of citi>ens could arue that the 2
nd
applies to the states throuh incorporation or throuh
su$stanti#e due process
iii) Amerson arues that the rule sayin that anyone with temporary restrainin order can"t carry a weapon is
too $road
i#) No#"t says these are in&unctions and aren"t entered unless someone is li%ely to mis$eha#e! the rate of
unlawful un #iolence in domestic settins is #ery hih! and these orders are of limited duration , only
until di#orce proceedins finish.
H) .ow are we oin to measure if a law #iolates the 2
nd
amendment(
a) U0er Re0tri%ti! B people con#icted of a felony! people dishonora$ly dischared! children! are prohi$ited
from ownin a un.
i) A)ample , a person con#icted of a felony for possession with intent to sell pot. 0ow wants to apply for
a firearm. Bhat felons ha#e a constitutional riht to arms and which don"t , o#"t could arue that dru
crimes are closely related to uns , could say limitation should $e cut $ac% to those whose cateory of
crime and un #iolence. <r is felons a safe line to draw , since felony separates minor crimes from
others. Bhen you are con#icted as a felon certain ci#il rihts are i#en up , such as riht to #ote. Also!
the rule has $een around a lon time so in terms of traditional li$erties , this is a traditional restriction on
that li$erty!
(1) 'f this is a constitutional riht! then the law must $e narrowly tailored , may$e felony con#iction
miht $e too $road.
(2) Bhat standard of re#iew should o#ern #arious restriction reardin $earin arms. <r should it $e
loo%ed at from an undue $urden.
8) De0 t.e ri2.t t @ear ar'0 a//l# t t.e 0tate0M
a) I!%r/rati!i0t ;ie8 B what does it mean to incorporate the 2
nd
amendment if you thin% it"s limited in its
purpose , to protect the states interest in ha#in a militia . 'f so states should $e a$le to reulate as they see
fit. -hat assumes we treat the 2
nd
amendment as strictly a$out state concerns and their interest in raisin a
militia
$) Sele%tive I!%r/rati!i0t ;ie8 B methodoloy for decidin what amendments apply to the states. 's the
pro#ision implicit in the concept of ordered li$erty (?al%o case). -he first amendment is a$out su$stanti#e
rihts and it applies to the states , the 1
st
amendment rihts are matri) of li$erty! the conditions of political
23
li$erty. -he 2
nd
! for self9defense the riht to %eep and $ear arms! is a su$stanti#e riht 999 could it $e
considered part of the matri) of li$erty( ' thin% 244 years ao it was pro$a$ly a fundamental riht.
Fundamental li$erty to protect yourself.
c) I00ue B what should $e constitutional1 stop ma%in political aruments a$out it.
i) ;= prohi$its un ownership. 999 hih murder rate , does that #iolate the 2
nd

ii) 's the riht to $ear arms fundamental in American society( 'e! family! procreati#e rihts! etc
(1) 7u$stanti#e rihts 9 .ard to e)plain why they should $e limited to matters of procreation E family
(2) .istory E -radition , could arue historic riht to $ear arms in this country.
(3) Arument $ased on a traditional riht to $ear arms has merit
(4) )rivileges 2 $mmunities clause , the rihts arisin out of the relationship $etween the citi>ens and
the national o#t , Bill apply to fed E states
d) :upu , 2
nd
amendment only pre#ents outriht prohi$itions! not reulatory measures.
i) 'f 2
nd
Amendment rihts come into $ein , what would content $e ,
(1) <utlaw assault weapons ,
(a) 'f the rule is that if the weapon has militia use then there is a riht to $ear it! then citi>ens can
ha#e it 999 danerous interpretation of /iller
($) /o#in away from militia restriction would i#e you more opportunity for restriction
(2) @ser +estrictions
(a) A)ample , felon restriction rule , 3221
($) 's this a prohi$ition on firearms or a reulation(((
:upu says prohi$ition!
@nder rational re#iew the felon restriction rule is accepta$le
-raditional riht , there has always $een a felon restriction! it"s a tradition
-ension , tradition #s. can the restriction $e &ustified.
9 0a&et# re2ulati!0 , no uns sold without trier loc%s 9 these loc%s add D4.44 to the cost
o =ourts would pro$a$ly loo% deferentially at these laws
9 $i0%reti!ar# /er'itti!2 0#0te'0 , you need official permission to et a un! and it i#es law enforcement
discretion in whether to rant permission. Be don"t want to lead 1
st
amendment rihts to enforcement
officials and miht ha#e compra$le concerns with 2
nd

9 Re2i0trati! a!$ @alli0ti% &i!2er/ri!t0 la80 999 o#"t wants to %now who has the uns and where they are.
's this an infrinement( 'f you are interpretin 2
nd
as ha#in an implicit riht to re#olution than this would $e
an infrinement $ut not if you #iew the 2
nd
amendment as a self9defense measure.
9 'f you could ha#e a 2
nd
amendment and the supreme court says there is a riht to $ear arms and then it miht
come down to they can $e reulated (they are danerous) $ut they can"t $e ta%en away. , lupu says that this
would $e prudent.
9 Nun 7afety: 7ay re*uirement that all handuns must $e smart uns. =an only $e turned on $y finerprint(
o -hat it would add O344 to the cost.
o -ransition , and it says it"s unlawful to possess any other uns.
o H8 $ 8e 'ea0ure t.e %!0tituti!alit# & t.i0M
's this narrowly tailored to the governments interest in gun safety( Appears so. 's it
simply an incidental burden.
o Thin+ about termination of pregnancy.
-ifference between prohibitions and regulations&
Regs under ,asey unconstitutional if undue burden- law that has as its effect0 substantial
interference w#the effectuation of the right&
9 ,hich standard- Narr8 tailri!2 or U!$ue @ur$e!M U!$ue "ur$e!
o )omparison with )asey. Basically! less afforda$le.
A)pense in the name of safety (li%e re*uirement that all second trimesters $e held in a
.ospital) overbroad.
o C!%er! a@ut eCtra %0t0 i'/0e$ B unnecessarily.
34
=asey said ha#in to notify spouse was an undue $urden! $ut 24 hr waitin period! different.
o Jou could say this is soooo infre*uent to sa#e say 14 li#es! you could say it"s enerally
unconstitutional.
o ,ho should have burden of proof on efficacy of the reuirement-
.ere! B+! so may$e o#ernment $ears $urden of persuasion.
A$out the 7cope 9 Amerson as applied to the 7tates
9 .oes the /
nd
apply to the states-
9 I!%r/rati!
o ?al%o , first applies to the states! the matri)! those indispensable to condition of liberty and
-emocracy.
o $s the right to have a firearm an indispensable condition of liberty and democracy- ,hich
century world view do we loo+ at-
o 'f there to protect states from the federal o#ernment , how could it be coherent to say it now
applies to the states- ;oesn"t *uite wor%.
9 Privile2e0 a!$ I''u!itie0 (14
th
) 7lauhterhouse
o Rights arising out of relationship between citi(ens and 3ed government&
o ?etitionin! etc.
o $f right to +eep and bear arms% out of concern of tyrannical federal government% then the people
get to +eep arms for this purpose% than any state law that would disarm the people% will destroy
that relati!0.i/.
o 0retty good argument that the privs and ims clause would affect this.
9 Su@0ta!tive Due Pr%e005Priva%#
o +iht of law a$idin citi>ens to ha#e thisM
o ?ri#acy! security , as a penumbra.
o 0enumbras aside 1 rights long protected at common law.
o Tra$iti!al l!20ta!$i!2 CL li@ert#M
o -ilemma for using traditional rights on what government can do&
o -radition , $loc%s inno#ati#e steps.
o Priva%# a!$ Per0!.$
o 14
th
as li$erty as su$stanti#e component.
o )asey2 *ight to ma+e decisions over shaping of the self.
o Firearms , somethin a$out pri#acy! how you shape yourself and your relationship to the world.
Blue #. +ed states , you"d et different answers.
;II. FREEDOM OF ENPRESSION AND THE FIRST AMENDMENT
A. Hi0tr# & t.e )
0t
A'e!$'e!t
1) Hi0tr# & t.e )
0t
A'e!$'e!t
a) E!2li0. .i0tr# Bthe only thin that people aree on is that one of the reasons for the 1
st
amend. was the
prohi$ition on licensin of the press that was in Anland
i) to print somethin you ha#e to et permission , this illustrates the daner of ha#in official control o#er
freedom of e)pression
$) )
0t
a'e!$'e!t B prohi$ited these prior restraints. -here was *uestion as to how much further than that the
1
st
amendment reaches. -here are cateories of speech crimes that came from British law that continued.
c) Se$iti! A%t B ma%es it a crime to $rin the o#"t or officials into disrepute. -ruth is a defense $ut if the &ury
doesn"t $uy it you could o to prison. /any thouht that it was tyrannical. Lefferson pardoned those who
had $een con#icted and persuaded conress to repeal it. ?aradim 1
st
amendment case! that its desined
protect free flowin political dialoue.
d) Civil War Su/re00i! B of anti9union press durin the war
31
e) )9E+ - the 7upreme =ourt says that the 1
st
amendment applies to the states.
". Earl# Ca0e0< T.e )9), E0/i!a2e A%t B Su@ver0ive A$v%a%#
the pro)imity to the daner is different in all three cases! in none of the cases there was no hih pro$a$ility that
the listeners would act *uic%ly on the urin.
1) S%.e!%6 v. US ()9)9- (p.3H4)
a) Facts: An anti9conscription acti#ist was chared for #iolatin the Aspionae Act when he circulated leaflets
intended to hinder the @7" conscription efforts durin a time of war.
$) ;ecision: (.olmes) T.e %!0tituti! /er'it0 t.e /u!i0.'e!t & 0/ee%. 8.e! t.e 8r$0 are u0e$ i! 0u%.
%ir%u'0ta!%e0 a!$ are & 0u%. a !ature a0 t %reate a clear and present danger t.at t.e# 8ill @ri!2
a@ut t.e 0u@0ta!tive evil0 t.at C!2re00 .a0 a ri2.t t /reve!t.
i) =lear and ?resent ;aner , is a$out pro)imity
(1) Ancourain people on line for the draft to not do it #s. rihtin editorials in a paper , pro)imity is
much stroner when you tal% a$out people in line for recruitment! the a$ility to act *uic%ly in
response to the speech is different as well.
(2) 'mae of lynchmo$ on &ail steps , someone in the crowd instiatin the others to ta%e matters into
their own hands 999 physical pro)imity! temporal pro)imity! emotional pro)imity
ii) the character of e#er act depends upon the circumstances in which it is done
(1) here the act leaflets were distri$uted on draft line
(2) ct. says that the espionae act punishes conspiracies to o$struct as well as actual o$struction , if the
words are intended to do the same then they need not $e successful in order to warrant ma%in the
act a crime
2) Frohwer% #. @7 (1313) (p.3H1)
a) the first amendment was not intended to i#e immunity to e#ery possi$le use of lanuae
$) in this case! the circulation of the paper 6was in *uarters where a little $reath would $e enouh to %indle a
flame8 , this fact was relied upon $y those that sent the paper out.
3) ;e$s #. @7 (1313) (p.3H2)
a) 6if a part or the manifest intent of the more eneral utterances was to encourae those present to o$struct the
recruitin ser#ice and if in passaes such encouraement was directly i#en! the immunity of the eneral
theme may not $e enouh to protect the speech.8
Nee$<
o an act
o a tendency in the act to $rin a$out harm
o intent to cause o$struction1disloyalty
4) /asses ?u$lishin =o. #. ?atten (131H) (7;0J) (p.384)
a) Facts: -he postmaster for$ade a pu$lishin company from distri$utin its maa>ine throuh the postal
ser#ice! claimin that the maa>ine o$structed military efforts in #iolation of the espionae act.
$) 'ssue: /ay the e)pression of opinions! critici>in a law! that fall short of directly callin for the #iolation of
the law $e punished for ad#isin others to #iolate the law(
c) ;ecision: 0o. <pinions critici>in a law may not $e punished as encourain the #iolation of the law unless
the full meanin of the e)pression directly counsels or ad#ises others to #iolate the law as it stands.
i) Lear!e$ Ha!$ comes up with a different way for drawin lines $1w protected and unprotected ad#ocacy
, he &%u0e0 ! t.e %!te!t & 8.at i0 0ai$
(1) it is not only necessary that you ure the act $it also that you tell someone that it is in their
interest1duty to do it , they 'u0t @e 8r$0 t.at directly %u!0el t %ri'e
(2) .and says that we shouldn"t reach too $roadly into the speech that critici>es war! etc! 99 if we do so!
we will $e underminin the enterprise of dissent , dissent is part of the pro&ect of democracy
32
D) Ha!$70 A//ra%. ver0u0 Hl'e07 A//ra%.
a) .olmes pro)imity to daner
$) .and focus on words! not pro)imity to danerI only if it is direct counsel to crime should $e find them in
#iolation
i) .and"s #iew is rather enerous to spea%ers , i#es a lot of leeway
ii) .and"s #iew i#es a lot more uidance to spea%ers as to what *ualifies and what doesn"t
iii) .and"s approach disappears from the law after this case and shows up a$out D4 years later as one of the
elements of the rule in Branden$ur
C) A@ra'0 v. US ()9)9-(p.3H4)
a) Facts: +ussian immirants were con#icted for distri$utin leaflets urin a eneral stri%e at a munitions
factory in an effort to pre#ent the use of munitions aainst +ussian re#olutionaries
$) ;ecision: ?unishment under the espionae act is constitutional where the indi#iduals intend to produce an
outcome that o$structs the @7 in its prosecution of the war.
c) Hl'e07 Di00e!t: -he ma&ority"s con#iction of the A$rams defendants are not supported $y their pu$lication
of the two leaflets.
i) this statute has a specific intent re*uirement unli%e in 7chen%! Frohwer%! and ;e$s
ii) these defendants were not tryin to affect the war w1Nermany , they were concerned w1 the Bolshe#i%s
they didn"t ha#e specific intent
iii) .olmes tal%s a$out imminence , pro)imity in time t.e $a!2er .a0 t @e immediate a!$ severe.
(1) here he adds imminence to his clear and present daner test
i#) .olmes" /ar%etplace of 'deas:
(1) the process is what is important , will produce efficient! sensi$le results
(2) the $est place to test ideas is in the mar%etplace of ideas , people ha#e e*ual access to the mar%et
(3) what a$out mar%et failures( there won"t $e an e)chane of ideas when someone yells 6fire8 in a
crowded theater.
C. T.e Re$ S%are Ca0e0 B Su@ver0ive A$v%a%#
in the 1324s we et some cases that are different from the Aspionae Act cases (which in#ol#e urin someone to
do somethin that can $e a crime pro)imity to crimes looms lare) , in 6+ed 7care8 cases! the court re&ects the
idea that pro)imity is in#o#led
1) Gitl8 v. N> ()9E+- (p.384)
a) Facts: a socialist produced and distri$uted a manifesto which ad#ocated the o#erthrowin of the @7 o#t. in
#iolation of 0J"s anarchy law
$) ;ecision: the clear and present daner test does not apply to state laws! where the state leislature has
determined! in the constitutional e)ercise of its police powers! that certain %inds of utterances in#ol#e such
daner of su$stanti#e e#il that they may $e punished.
i) It i0 alri2.t &r t.e N> le2i0lature t $e%i$e t.at t.ere i0 a! u!la8&ul %la00 & uttera!%e0 , here! a
eneral class of speech aimed at o#erthrowin the o#t.
(1) =t. says that Nitlow"s speech falls w1in this class and i#es deference to the leislature
c) ;issent: (.olmes) if the protections of the due process clause encompass the 1
st
amend"s freedom of speech!
then the clear and present daner test should apply
i) here! there was no present daner of an attempt to o#erthrow the o#t.
ii) he is aruin a%in to what he arued in A$rams.
2) W.it!e# v. Cali&r!ia ()9E,-(p.388)
a) Facts: a mem$er and orani>er of a radical communist party was con#icted under a criminal syndicalism
statute e#en thouh she did not intend for the roup to use #iolent and unlawful tactics. $ecomin a mem$er
of an orani>ation that tauht ideas that Nitlow said could $e outlawed.
33
$) ;ecision: A state may! in the e)ercise of its police powers! punish pu$lic utterances inimical to the pu$lic
welfare as incitin crime! distur$in the pu$lic peace! or threatenin the unlawful o#erthrow of orani>ed
o#ts.
c) "ra!$ei0 C!%urre!%e: (endorses clear and present daner test)
i) this is the first reat 1
st
amendment opinion
ii) Brandeis says that the 2vt. u2.t t @e a@le t a@le t li'it t.e a$v%a%# & %ri'e 8.e! t.ere i0
imminent harm (.olmes had said this)
(1) Brandeis says that this has an important social function , the affirmati#e political duty of speech
(2) up until now! the emphasis on 7.=t. opinions has $een on ris%s1daners of speech , $ut Brandeis is
tal%in a$out! for the first time! the ris%s of repression of speech
(a) Brandeis says that ha#in no outlet for your ideas will yield $ad thins , if you repress people
who are aitated a$out somethin! you eliminate their hope and dri#e them to #iolence
($) Brandeis has a safety outlet B i& t.e 0/ee%. i0 i! close proximity t grave a!$ serious $a!2erD
t.e! /er.a/0 it %a! @e 0u//re00e$.
(i) imminence is important $1c only if there is no time for discussion can you &ustify the
suppression , if there is time for ood counsel and self9reflection! then the o#t. can"t
suppress
(3) his idea draws from the polis , that people come toether to listen and to sol#e pro$lems
(a) society ouht to ta%e most of the ris%s of harm , the limit comes when the speech produces
imminent daner or serious harm
$1w the 1324s and the 13D4s the court doesn"t chane the law on incitement in any apprecia$le way
3) De!!i0 v. US ()9+)- (p.33D) (6clear and present daner8 restated)
a) Facts: A roup of communist conspirators were prosecuted under the 7mith Act for conspiracy to o#erthrow
the o#t.
$) ;ecision: (?lurality opinion) Bhen speech or pu$lication creates a 6clear and present daner8 of attemptin
or accomplishin a prohi$ited crime! the o#t. may constitutionally restrict that speech and a con#iction
relyin on the speech and press as e#idence may $e sustained.
i) it ma%es no sense that the o#t. has to wait until attempted o#erthrow of the o#t. is imminent
ii) the plurality relies on :earned .and , when the daner ets as reat as an attempt to o#erthrow the
o#t.! then the re*uirement of imminence ets rela)ed
(1) t.e 're 0eriu0 t.e $a!2erD t.e &art.er a8a# &r' t.e $a!2er #u %a! @e t Hu0ti&# %!vi%ti!
c) =oncurrence (Fran%furter): says that a con#iction in a case li%e this will silence people , $ut that national
security sta%es are #ery hih and it is not up to the court to $alance those interestsI that is for the leislature
i) we should defer to conress
ii) this is interest9$alancin with stron deference to the leislature $1c of forein policy implications
d) ;issent: these people were nowhere near o#erthrowin the o#t.
i) danerous ideas cannot $e suppressed , these people were only teachin ideas , if they were perhaps
teachin methods of terrorism that would $e different
ii) this is #ery anti9:ochnerian
4) Ot.er S'it. A%t %a0e0 , all are decided in the uise of statutory interpretation
a) Jates #. @7 (13DH) (p.1442)
i) will limit to ur2i!2 t a%ti! rather than merely $elie#e in somethin , ha#e to pro#e that people are
ad#ocatin action and not &ust that they $elie#e somethin
$) 7cales #. @7 (13C1) (p.1442)
i) Facts: deals with mem$ership clause of the 7mith Act which made it a felony to %nowinly $ecome a
mem$er of any orani>ation that ad#ocates the o#erthrow of the @7 o#t. $y force or #iolence
ii) ;ecision: 0eed to pro#e not only %nowin mem$ership in a roup that is of unlawful purposes! $ut 'u0t
.ave specific intent t &urt.er t.eir /ur/0e0.
(1) 7o you could say '"ll $e a mem$er! and ' %now you want to o#erthrow the o#ernment! $ut ' don"t
support that part.
34
(2) 3ou cant be convicted of unlawful membership in the group.
D. T.e M$er! I!%ite'e!t Te0t
<nly with Branden$ur do we $ein to encounter contemporary first amendment rules of decision
1) "ra!$e!@ur2 v. O.i ()9:9- (p.144D)
a) Facts: A KKK leader appealed his con#iction under the <hio =riminal 7yndicalism statute for ad#ocatin the
duty and necessity of usin crime! #iolence! and terrorism to accomplish political reform! and for teachin
doctrines of criminal syndicalism.
$) ;ecision: -he ct. says that the statute is unconstitutional $1c it is o#er$road.
i) .ard9and9fast rule =onstitutional uarantees of free speech and free press will not permit a state to
for$id or proscri$e ad#ocacy of the use of force or of a #iolation of the law unless such ad#ocacy is (1)
directed to inciting or producing (2) imminent lawless action and is (3) li6el# t i!%ite r /r$u%e
0u%. a%ti!.
(1) the ct. accepts imminence as part of the rule for the first time (;ennis was a plurality)
(2) this new rule is very speech protective , repudiates the old rule
c) -he Branden$ur +ule operates on two le#els:
i) measures the constitutionality of the rule
ii) applies aain in relation to the facts , the ct. doesn"t et this far in this caseI the ct. loo%s only at the
statute at issue and says the statute is o#er$road
(1) any state law that doesn"t conform to this rule is o#er$road and therefore unconst.
d) -oes the rule re%uire intent to produce lawless action+
i) most cases say that the rule re*uires intent
e) *hat would this rule do with the distribution of information+
i) e.. ta) e#asion seminar there is no urin unlawful acti#ity! not imminent , $ut you are ena$lin
them , it doesn"t matter if it is tomorrow or in C mos.
ii) is we$ pae with $om$ instructions ena$lin( the audience is open , not e#eryone is oin to ma%e a
$om$.
iii) I''i!e!%e 'a6e0 a $i&&ere!%e at 0'e /i!t0D @ut !t al8a#0
2) -hreats
a) what is the harm from threats+
i) the harm is emotional distur$ance , perhaps also restriction from freedom of actionI cost of precaustions
$) $s there an imminence re%uirement for threats+
i) if somethin is a true threat! it"s harm is done at the time of utterance
ii) the only way the mar%et can fi) the harm of the threat is if the threat is withdrawn
c) *hat counts as a true threat+
i) all we %now from the 7.=t. is what it says in Batts (p.144D) this was not a true threat $1c it is
conditionalI under the circumstances there was no reason to ta%e the threat seriously
(1) 6'f they ma%e me carry a rifle the first man ' want to et in my sihts is :BL.8
3) ?lanned ?arenthood #. American =oalition of :ife Acti#ists (3
th
=ir.)(handout)
a) Facts: A=:A &ustifies assassination of doctors in protection of fetuses. -hey create files of doctors they deem
uilty and others they #iew as complicit in the reime , police officers! nurses!etc. -hey ta%e the names of
these people and post them on their we$ site , ta%e the names off of people who ha#e $een %illed as a result
of anti9a$ortion #iolence and ha#e other mar%ins for people who ha#e $een in&ured.
$) 4ow does the 5
th
,ir& define true threats for statutory and 6
st
amend& purposes+
i) the rule that the 3
th
=ir. applies is an @He%tive 0ta!$ar$ , 6whether a reasonable person would foresee
that the statement would $e interpreted $y those to whom the ma%er communicates the statement as a
serious expression of intent to harm or assault.8
3D
ii) not o#er$road , and purports to sol#e the pro$lem of am$iuity , e.. if there was a history of #iolence
in a relationship then a statement such as 6you"ll reret it8 may $e unlawful , $ut if there is no #iolence!
then li%ely won"t $e
iii) ; says that the statements were made in pu$lic and that there was no showin that the spea%ers were
themsel#es the ones of whom the doctors were afraid
c) will the 1
st
amend. tolerate a 6reasona$le person8 standard as opposed to a su$&ecti#e intentionality standard(
:upu thin%s that there miht need to $e some intent re*uirement , to instill fear or threat
4) .ow is A=:A different from =lai$orne .ardware (p.1448)(
a) 'n =lai$orne! 7.=t. o#erturns #erdict aainst 0AA=? , 7.=t. understand the statement as thouh 3
rd
parties
may enforce the $oycott
$) distinction =lai$orne is impersonal! A=:A is personal , doctors are identified $y name
E. Fi2.ti!2 Wr$0 (2e!erall# !t /rte%te$-
1) Nenerally
a) harm depends on impact to listener , once uttered you"#e created the harm
$) $n all these cases 1 when loo+ing at the imposition of liability 1 thin+2
i) BhatUs rule of law(
ii) Bhat harms are they tryin to surpress(
iii) And what"s the connection(
2) =antwell #. =onnecticut (1344) (p.1411)
a) Facts: Leho#a"s Bitness playin record on street which insults orani>ed reliion and +oman =atholics and
outraes people around him. =antwell is chared with $reach of peace.
$) ;ecision: state cannot outlaw annoyin1offensi#e utterances on the street
i) in the a$sence of a statute narrowly drawn to define and punish specific conduct as constitutin a clear
and present interest of the state! cannot outlaw annoyin1offensi#e utterances there is no narrowly
drawn statute here , it is simply a $reach of peace #iolation.
ii) ct. says that t.e /00i@ilit# t.at 0'e!e 8ill 2et a!2r# i0 !t e!u2.
3) =haplins%y #. 0. (1342) (p.1412)
a) Facts: Leho#a"s Bitness con#icted under 0. statute which said that no person 6shall address any offensi#e!
derisi#e! or annoyin word to any other person who is lawfully in any street or pu$lic place! not call him $y
any offensi#e or derisi#e name.8
$) ;ecision: the main theory a$out fihtin word in this case is that the 8r$0 'u0t te!$ t i!%ite a!
i''e$iate @rea%. & t.e /ea%e.
i) 7e#eral crucial elements:
(1) the words must $e face#to#face
(2) average addressee
(3) tend to incite immediate breach of peace
ii) one of the mysteries of this case is whether it is audience9sensiti#e
iii) the ct. here is reactin to the historical understandin if the 1
st
amend. , that certain types of utterances
are historically e)cluded from first amend. protection
4) Noodin #. Bilson (13H2)(p.1413)
a) ;ecision: 7tatute is found #oid $1c it is o#er$road , it swept in protected speech ranin $eyonf the fihtin
words punisha$le under =haplins%y , the statute had not $een limited to face9to9face or to the a#erae
addressee.
it is a mista%e to thin% of the 1
st
amend. as whether certain types of words are protected , t.e )
0t
a'e!$. i!vlve0
ri2.t0 a2ai!0t rule0 B ri2.t0 !t t @e %!vi%te$ r /u!i0.e$ u!$er %ertai! t#/e0 & rule0
t.e /0t-C.a/li!06# &i2.ti!2 8r$0 %a0e0 are a@ut rule0 t.at 'a# @e eC%e00ive r ver@ra$.
3C
D) C.e! v. Cali&r!ia ()9,)-(p.141D)
a) Facts: A war protester was con#icted of distur$in the peace when he wore a &ac%et $earin the phrase 6Fuc%
the ;raft8 to a :A courthouse. 't is important what =ohen was chared with , he was not chared under a
statute that is focused on communication , he is chared under a %!$u%t 0tatute.
$) 'ssue: @nder the 1
st
amend.! can states suppress speech that contains offensi#e e)pleti#es on the round that
these words inherently cause a distur$ance of the peace(
c) ;ecision (.arlan): U!le00 it i0 li6el# t i!%ite la8le00!e00 a!$ vile!%eD t.e 2vt. %a!!t re0tri%t 0/ee%.
0i'/l# @e%au0e it i0 &&e!0ive.
i) .arlan says that you ha#e no riht to ha#e your sensi$ilities protected in pu$lic
ii) there was no o$scenity here , there was no erotic messaeI o$scene implies erotic
iii) this is not a fihtin words case $1c it is not face-to-face , there was no personal insult (if we treat the
=haplins%y fihtin words rule as narrow in this way which :upu thin%s you ha#e to)
i#) the only theory offered $y the state that .arlan says that the ct. really has to ta%e seriously is that there
are some words that are so offensi#e that the state can %eep them out of the pu$lic discourse
(1) .arlan responds in two ways:
(a) there is a fair warning problem , how will people %now what words are on the list
(i) the state could et around this $y ma%in a list of particular words
($) lanuae is chosen for many reasons , sometimes it is an emoti#e force , 0/ea6er0 .ave
aut!'# ver %.i%e & 8r$0 @5% t.at /la#0 i!t t.e e'tive &r%e & la!2ua2e allowed
to use lanuae that is su$#ersi#e! shoc%in , it is a ood way to et attention
d) ;issent (Blac%): Blac% says that this is conduct! not speech not protected $y the first amendment
i) this doesn"t fly thouh $1c it was his word choice! not his manner that lead to arrest
C.e! i0 a@ut t.e &ree$' t @e utra2eu0 , 6one man"s #ularity is another man"s lyric8 , t.e 2vt. %a!7t
re2ulate ta0te i! la!2ua2e
F. I!Hur# t Re/utati! B Li@el
1)
Beauharnais #. 'llinois (13D2)(p.142C) (Nroup li$el) (also see in con&unction w1hate speech)
a)
Facts: An 'llinois criminal roup li$el law which prohi$ited the pu$lishin! sellin! or e)hi$itin in any
pu$lic place or any pu$lication which portrays depra#ity! criminality! unchastity! or lac% of #irtue of a class
of citi>ens of any race! color! or creed or which e)poses them to contempt! derision or o$lo*uy! or which is
producti#e of $reach of the peace or riots. Beauharnais! pres. of the Bhite =ircle :eaue! had orani>ed the
circulation of a leaflet settin forth a petititon callin on =hicao officials to halt $lac% 6encroachment8 on
white people.
$)
'ssue: whether the 14
th
pre#ents a state from punishin such li$els directed at desinated collecti#es and
flarantly disseminated
c)
;ecision: the =t. says that 'llinois had the power to pass such a law , li$elous utterances are not within the
area of constitutionally protected speech
i) this ma%es roup li$el a crime
ii) this is inconsistent w1 Brande$ur and =haplins%y
2)
N> Ti'e0 v. Sulliva! ()9:1-(p.1428)
VVV this is the sinle most important decision in the history of 1
st
amend. ad&udication
a)
Facts: /ontomery! Ala$ama"s police commissioner sues the 0J -imes for purportedly li$elous statements
printed a$out police actions in Ala$ama , a roup had pu$lished an ad in the paper charin that 6an
unprecedented wa#e of terror8 was suppressin across $lac% protestors in the south and #arious more specific
claims.
$)
'ssue: =an a pu$lication or a mem$er of the pu$lic $e lia$le in damaes for spea%in out aainst the actions
of a pu$lic official(
3H
c)
;ecision: A /u@li% &&i%ial %a!!t re%ver $a'a2e0 &r a $e&a'atr# &al0e.$ t .i0 &&i%ial %!$u%t
u!le00 .e /rve0 t.at t.e 0tate'e!t 8a0 'a$e 8it. actual malice , that is% with +nowledge that it was
false or with rec+less disregard of whether it was false or not.
i) can"t reco#er damaes unless the statement has $een made with a%tual 'ali%e
(1)
this case fails the test
ii) for the first time the 7.=t. constitutionali4es the law of libel
(1)
now li$el laws implicate 1
st
amendment concerns and must $e measured aainst the 1
st
(2)
d)
what is the harm of defamation+
i) in&ury to reputation
ii) pecuniary harm , harm $usiness
iii) social and dinitary harm
e)
the S&,t& turns the common law of defamation upside down 7 why+
i) the common law rule had made defamation tortious and there was strict lia$ility , truth was a defense
ii) they turned the law on its head $1c it could ha#e silenced or limited press co#erae of a #ery important
ci#il rihts mo#ement.
f)
7o why do we ha#e this #ery press protecti#e rule(
i) Di&&ere!%e i! t.e .ar'0
ii) Wrrie$ a@ut Sel&-Ce!0r0.i/
(1)
@nder 7: they would sensor themsel#es , o% with car manufacturers , we want them to self9sensor.
iii) Mar6et Pla%e & I$ea01C.e%60 a2ai!0t $e&a'atr# &al0e.$0.
(1)
(Brandeis in Bhitney) a harm that more speech can cure.
(2)
*hen public officials are defamed for matters of their official conduct0 there will be sufficient
opportunities to reply and correct 7 and theyll make their way into the public discourse&
(3)
$dea is the public officials engaging in official conduct% will have adeuate means to respond.
3)
?ushin <ut from 7ulli#an: -o what e)tend should we e)tend 0J- standard to non#public officials(
a)
/u@li% &i2ure0 are al0 %vere$: if the person is a pu$lic fiure 0J- applies , no lia$ility! unless
intentional falsehood
i) someone runnin for office
ii) eneral pu$lic fiures , i.e.! famous actor! athletes
(1)
notion of community -rachten$er in ;=
iii) 6#oluntarily thrust themsel#es into pu$lic contro#ersy8
(1)
if it is in#oluntary they are not considered a pu$lic fiure
$)
"ut it 'u0t relate t public conduct.
i) 'f pu$lic fiure $ut private matter! such that her pu$lic status should not count (uncertainty a$out this
doctrine) than the actual malice rule would not apply.
ii) 7o what rule would then apply(
(1)
All the =onstitution re*uires is that they don"t ha#e lia$ility without fault.
c)
'o% (3T covers public officials and public figures acting in matters of the public interest
4)
Nert> #. +o$ert Belch! 'nc. (13H4) (p.143C) (?ri#ate Fiures)
a)
Facts: this was a li$el action $y a =hicao lawyer , who represented a #ictim"s family in a ci#il suit aainst a
=hicao cop , aainst the pu$lisher of a maa>ine which chared Nert> with $ein the architect of a 6frame9
up8 of the policeman in the murder trial and called Nert> a 6=ommunist9fronter8
$)
;ecision: the =t. found that Nert> was not a pu$lic fiure and set forth a lower standard of lia$ility for
pri#ate li$el actions (up to the states) the =t. does not re*uire the actual malice standard
i) as lon as the states do not impose lia$ility w1o fault (strict lia$ility)! the state may define for themsel#es
the standard of lia$ility for a pu$lisher or $roadcaster of defamatory falsehoods in&urious to a pri#ate
indi#idual
ii) +eardin damaes! the ct. held that t.e 0tate0 'a# !t /er'it t.e re%ver# & /re0u'e$ r /u!itive
$a'a2e0 only compensatory damages for the actual in&ury
38
(1)
actual in&ury is not limited to out9of9poc%et losses , could include in&ury to reputation! mental
anuish! etc.
(2)
&r /re0u'e$ r /u!itive $a'a2e0 'u0t u0e N>T 0ta!$ar$
iii) ?owell e)plained that the state interest in compensatin in&uries to pri#ate indi#iduals was stroner than
in the case of 6pu$lic fiures8 this distinction made a less demandin standard of lia$ility here
D)
;un and Bradstreet! 'nc. #. Nreenmoss Builders (138D) (p.1438) (7peech on matters of pri#ate concern)
a)
Facts: the alleed defamation in#ol#ed a pri#ate credit report i#en $y ;EB to a $an% reardin Nreenmoss!
a construction contractor , the report erroneously claimed that Nreemoss had filed for #oluntary $an%ruptcy.
$)
;ecision: (plurality) W.e! $eali!2 8it. 0/ee%. re2ar$i!2 /rivate /e/le a!$ 'atter0 & /rivate
%!%er!D t.e 0tate %a! i'/0e 8.atever lia@ilit# 0%.e'e it 8a!t0D eve! 0tri%t lia@ilit#
i) =t. found that credit reports in#ol#e nothin of pu$lic concern outside of Net> principle
ii) A ma&ority of the court re&ected the claim that the rele#ant distinction was $1w the media and other forms
of communication no difference b#w media and non-media
c)
-wo Wuestions :ur%in
i) )an you ever say that this is really on a matter of private concern-
(1)
-hird parties do ha#e an interest in their economic well9$ein.
ii) "ajority found no distinction between press and everyone else.
(1)
't could ma%e a difference if the B?<7- had to warrant the accuracy of what it wanted to say.
7o if pu$lic person! issue of pu$lic concern 0J-.
'f pri#ate person! pri#ate concern may$e e#en 7:.
'n $etween up in the air.
?arody of =helsea(
o After she i#es her -al% /aa>ine inter#iew a$out the $om$in! a maa>ine decides to do a parody. <n the
top! $i letters: interview parody.
o =helsea is #ery upset. But no case.
C)
.ustler /aa>ine #. Falwell (1388) (p. 1433) ('ntent. 'nflict. Amotion. ;istress) (@nanimous)
a)
Facts: 7uit $y Lerry Falwell see%in damaes aainst .ustler on $asis of parody.
$)
;ecision: ct. declined to hold $roadly , they held that a /u@li% &i2ure &&e!$e$ @# a! utra2eu0
'a2a4i!e /ar$# %ul$ !t re%ver &r t.e trt & IIED 8it.ut a 0.8i!2 & t.e a%tual 'ali%e
reAuire$ @# N>T.
c)
$f mar+ed clearly% so reasonable reader +nows its not held out to be true , so lon as it is not held out as a
fact! you can"t sue
G. Priva%#
1) =o) Broadcastin #. =ohn (13HD)(p.1442)
a) Facts: father sued $1c of the $roadcastin of the fact that his dauhter had $een a rape #ictim
$) ;ecision: =t. held that %ivil lia@ilit# i! a true /riva%# a%ti! %ul$ !t @e i'/0e$ u/! a @ra$%a0ter
&r a%%uratel# /u@li0.i!2 i!&r'ati! relea0e$ t t.e /u@li% i! &&i%ial %urt re%r$0.
i) =o) prohi$ition on the restriction of lawfully o$tained truthful information , includes the identities of
&u#eniles and #ictims of se)ual offenses
2) Florida 7tar #. B.L.F. (1383)(p.1443)
a) Facts: a newspaper had pu$lished the name of a #ictim of a se)ual offense , o$tained from a police report
made a#aila$le in the police dept"s press room. -here was a state law $arrin pu$lication of the names of
such #ictims.
$) ;ecision: held the law unaccepta$le.
3) Bartnic%i #. Fopper (2441) (p.1443)
33
a) Facts: case in#ol#ed the illeal interception of a cell phone con#ersation $1w two union neotiators for the
?enn 7tate Ad. Assoc. , they were discussin a possi$le stri%e aainst a local pu$lic school district in heated
terms. -he call was secretly intercepted $y an unidentified person who turned it o#er to a local citi>en who in
turn a#e the tape to a local radio tal% show which played it on the air.
$) ;ecision: =t. said that where the pu$lisher of information has o$tained the information in *uestion in a
lawful manner $ut from a source who has o$tained it unlawfully! the o#t. may not punish the ensuin
pu$lication $ased on a defect in the chain.
(1) the fact that it was initially o$tained unlawfully doesn"t affect it
(2) this is trut.&ul i!&r'ati! & public %!%er!
ii) the ct. assumed that the interception was intentional and unlawful the disclosure of the tape #iolated
fed. and state statutes
H. SeCuall# EC/li%it C''u!i%ati!
1) -he law $efore /iller
a) $1w 13CD913H3 the law of free e)pression was crystalli>ed in se#eral arenas , Branden$ur! 7ulli#an! =ohen!
/iller
$) Before 13H3! reardin the law of o$scenity:
i) =haplins%y notes that the o$scene is not protected $y the 1
st
amendment (i.e.! the o#t. can reulate) , it
had also said that a$out li$el which was pro#en wron in 7ulli#an
ii) $einnin in the 13D4s! the 7.=t. made some effort to fit o$scenity into 1
st
amend. constraints
c) .istorically! there are se#eral pro$lems w1 o$scenity:
i) fair warnin1#aueness how do you create standards of o$scenity which draws clear lines as to what
is accepta$le and what is not
ii) the relationship $1w o$scenity law and art , suppression of art (this is less true today than it was)
iii) what speech harm does o$scenity cause( (this is the most persistent pro$lem)
(1) o$scenity is more remote and speculati#e than other speech harms
i#) 'f there is any harm from se)ually e)plicit speech! is there any mar%et failure here suestin a criminal
element(
(1) is this the %ind of harm that more speech can cure(
d) -wo ideas a$out o$scenity! adopted from Anlish law! that were re&ected in +oth:
i) o$scenity can show up in isolated passaes
ii) the notion that you would measure the effects of the material $y their affect on suscepti$le o$ser#ers
2) +oth #. @7 (13DH)(p.14C2)
a) Facts: a pu$lisher and a mail order $usiness are con#icted under federal and state statutes for mailin
o$scenity! for lewdly %eepin for sale o$scene $oo%s! and for pu$lishin an o$scene ad#ertisement.
$) ;ecision: Bhen an a#erae person applyin contemporary community standards feels that the dominant
theme of some material! ta%en as a whole! appeals to prurient interests! the o#t. can! w1o offendin the
constitutional uarantees of the 1
st
amend.! reulate the material.
i) the wor+ has to be viewed as a whole , can"t loo% at isolated passaes
ii) need to loo% at the effect on average persons
iii) focus on the prurience of the material
i#) the offensi#eness of the presentation transcends community standards
c) the reason that o$scenity can $e suppressed is that it is wor% that is 6utterly w1o redeemin social
importance.8 , this is offered as a rationale! not a standard to $e measured aainst
3) ;e#elopments $1w +oth and /iller:
a) 7tanley #. Neoria (13C3) (p.14CC)
i) the state cannot criminali>e the possession of o$scene material , this is a pri#acy caseI the case is limited
to pri#acy of the home , doesn"t apply to distri$ute! etc.
$) @7 #. +eidel (13H1) (p.14CH)
44
i) affirms that there is no riht to distri$ute1sell , therefore! the state can ma%e it contra$and , $ut once you
et it home! you"re o%ay.
c) the =t. is really splintered ,
i) Blac% and ;oulas thin% there should $e no law of o$scenity
ii) Brennan had mad the 6utterly w1o redeemin social importance8 rationale into a standard
4) Miller v. Cali&r!ia ()9,3- (p.14C8)
a) Facts: ;istri$utor of unsolicited o$scene ad#ertisin $y mail was prosecuted under an anti9o$scenity law
$) 'ssue: =an state leislatures pass leislation reulatin the dissemination of o$scene material w1o offendin
the 1
st
amendment(
c) ;ecision: <$scene material is not protected $y the 1
st
amendment! and can $e reulated $y the states without
a showin that the material is utterly without redeemin social #alue! so lon as the statutes which address
restrictions are carefully limited! specifically define what actions are inappropriate! and comply w1
constitutional standards for definin o$scenity.
i) the $asic uidelines for the trier of fact are:
(1) the statute must specifically define the %ind of conduct that may not $e portrayed
(a) this is to sol#e the fair warnin pro$lem
(2) the average person applyin contemporary standards would find that the wor%! ta%en as a whole!
appeals to the prurient interest
(a) se)ual conduct is portrayed in a patently offensive way in liht of community standards
($) the idea of prurience , the %ind of interest in se) that is prurient is the %ind with which the law is
concerned , e.. not interested in scientific interest
(3) the wor% ta%en as a whole lac+s serious artistic% social value
D) 7mut Tonin
a) the 7.=t. has upheld the power of municipalities to >one certain esta$lishments
$) the theory of >onin ordinances is not that the speech is $ad $ut that these places concentrated creates a $ad
district , often means spreadin the places out
i) it is a theory of secondary effects , crime! reduction in property #alue! etc.
e#en as /iller tried to create a sta$le platform for o$scenity prosecutions! there are #ery few o$scenity
prosecutions in the is country , prosecutors ha#e tareted se)1#iolence com$o and child pornoraphy
I. C.il$ Pr!2ra/.#
1) 0J #. Fer$er (1382)(p.1481)
a) Facts: statute criminali>in child pornoraphy
$) 'ssue: whether material that is not o$scene under /iller can $e suppressed $1c of certain scenes in#ol#in
children.
c) ;ecision: upholds the law , material can $e reulated as child porn e#en if it is not o$scene , it is a different
cateory
i) there is a scienter re*uirement , the distri$utor has to 6!8 what is on the tape
ii) the ct. identifies the harm of child pornoraphy as the state"s interest in pre#entin harm to children ,
e)ploitation , continuin harm to child
iii) what e)plains applyin the rule to distri$utors! not &ust producers(
(1) it is a second layer of protectionI distri$utors are easier to find
(2) if you can"t distri$ute it! then it ta%es away the incenti#e to produce the material
2) <s$orne #. <hio (1334) (p.1484)
a) ma%es it a crime to possess child porn , the rule in 7tanley does not apply here
3) Ashcroft case
a) case dealin with #irtual child porn
41
$) not the same harm as in Fer$er
c) the dissent arues that need to pre#ent child porn need to suppress all material that appears to $e child
porn
=. Pr!2ra/.# a0 Su@Hu2ati! & W'e!
1) /cKinnon9;wor%in <rdinance (p.148D)
a) this was an attempt to put their idea of pornoraphy into the law
$) the ordinance creates a pri#ate ci#il action for suppression of porn , empowers women to $rin ci#il actionsI
ta%es it out of the hands of police1authorities
c) the underlyin social theory $ehind the ordinance is that porn is danerous to women , harms! discriminates
aainst! derades women
i) the ordinance is tryin to use the law to limit the portrayal of women in this way
2) Cate2rie0 & le2al re0tri%ti!0 ! %''u!i%ati! ($roader than porn):
a) content#neutral laws (least contro#ersial)
i) laws that reulate time! place! manner of speech
ii) need to pass a reasona$leness test
iii) we ha#en"t really studied these laws
$) content#based laws
i) laws that reulate speech $1c of its communicati#e impact
ii) state"s interest is tied up w1 communicati#e impact
iii) 0tate 'a# !t 0u//re00 %!te!t & 0/ee%. u!le00<
(1) falls into unprotected cateory
(2) the restriction on speech is narrowly tailored
c) viewpoint#based laws
i) state ne#er admits this
ii) these are censorial laws , presumpti#ely unconstitutional
3) American Boo%sellers Ass"n #. .udnut (138C) (p.148H)
a) Facts: distri$utors of se)ually e)plicit material $rouht suit see%in to ha#e a porn statute which detailed the
prohi$ited acts! declared unconstitutional , the ordinance defined porn as a practice that discriminates aainst
womenI outlawed se)ually9e)plicit su$ordination of women
$) ;ecision: Aaster$roo% says that the ordinance fails to protect wor%s which ha#e real #alue
unconstitutional.
i) Ea0ter@r670 'ai! /i!t i0 t.at t.i0 i0 a! atte'/t t 0u//re00 8r60 t.at %!tai! i$ea0
(1) the con#entional #iew of o$scenity is that it is not for idea purposes! &ust for prurient interests
(2) howe#er riht or wron the ordinance is a$out the #iews! the 1
st
amendment won"t allow for the
o#t. to impose a certain #iew of women
c) what made /cKinnon"s criti*ue of porn politically powerful (that most se)ually e)plicit material had a
#iewpoint , the su$&uation of women) is what doomed it constitutionally
J. C!te!t-Neutral La80 a!$ S#'@li% S/ee%.
H8 t $eter'i!e i& a !!-ver@al a%t i0 0/ee%. B
o L6 at t.e 0ta!$ar$ i! t.e S/e!%e %a0e B the $eha#ior is communicati#e if there is an intent to con#ey a
particulari>ed messae was present which would $e understood to those who #iewed it. /essae ;irect E
:i%ely to $e understood
o I!Auir# B ()- 8a0 it i!te!$e$ t @e %''u!i%ativeD (E- 8a0 it /er%eive$ t.at 8a#.
o T.e Lu/u Te0t B :oo% to see under what rule the person is $ein proceeded aainst! is it a rule aimed at
communicati#e harms(( -hen the o#"t is treatin it as speech.
1) US v. O7"rie! ()9:*-(p.11C4)
42
a) Facts: a war protestor appealed his con#iction under the @ni#ersal /ilitary -rainin and 7er#ice Act
(@/-7A) for $urnin his selecti#e ser#ice reistration certificate.
$) 'ssue: =an o#t. e#er place restrictions on sym$olic speech(
c) ;ecision: Jes. -he 7.=t. lays out a &ur-/art te0t , 2ver!'e!t re2ulati! & 0#'@li% 0/ee%. i0 Hu0ti&ie$
i&<
i) it is within the constitutional power of the govt.
ii) it furthers an important or substantial interest
(1) (this is somethin in $etween compellin interest and rational $asis)
(2) this isn"t where the action is in the case
iii) the govt. interest is unrelated to the suppression of free expression (VVVshould $e X1)
(1) if the o#t. interest is related to the suppression of free e)pression then the law is content9$ased ,
which the o#t. can"t do unless it falls w1in a cateory of unprotected speech (fihtin words! etc.) or
is narrowly tailored! etc.
(2) if the o#t. interest is unrelated then we head down a different path
(a) how will we %now if the interest is unrelated( =on. will ne#er admit it. 0eed to loo% at the law
and what it suppresses.
i#) the incidental restriction on alleged 5
st
amendment freedoms is no greater than is essential to the
furtherance of that interest
(1) should also as% here , what is the incremental speech #alue to the protestor of $ein a$le to $urn the
draft card( what ma%es it #alued is that it is illeal , the ris% in#ol#ed
d) ,an anyone really win under the 8Brien test+
i) <"Brien type claims always lose in the 7.=t.
ii) the test can only ha#e clout if we say that at some point the o#t. has to ta%e a ris% , willin to ma%e
trade9offs
iii) i& t.e 2vt. %a! 0.8 t.at it07 i!tere0t i0 u!relate$ t.e! t.e 2a'e /la#0 ut ver# $i&&ere!tl# t.a! i&
t.e 2vt. %a!7t 0.8 it70 i!tere0t i0 u!relate$
2) TeCa0 v. =.!0! ()9*9- (p.11H2)
a) Facts: appeal of the con#iction of a man who $urned an American fla as part of a political protest
$) 'ssue: is $urnin a fla e)pressi#e conduct protected $y the 1
st
amendment(
c) ;ecision: Jes. W.e! 2vt70 i!tere0t i! re0tri%ti!2 0/ee%. i0 @a0e$ ! a $e0ire t 0u//re00 i$ea0 r
vie8/i!t0 eC/re00e$ @# t.e 0/ee%.D strict scrutiny applies a!$ t.e 2vt. .a0 a .i2. @ur$e! & /r& t.at
it 'u0t @ear i! r$er t Hu0ti&# t.e re0tri%ti!.
i) see statute , p.11H3 fn.1
ii) the pu$lic monument part of the statute would li%ely $e constitutional , the state"s interest there is
content9neutralI are a$out not defacin property enerally and specific types of property where respect
for the property is in#ol#ed
iii) what is the governments interest in suppressing the burning of the flag+
(1) it is not the same interest as in suppressin sinular monuments which is not yours to deface or
destroy
i#) -e)as can"t rely on the notion of sinular property! so -e)as relies on two themes:
(1) audience reaction , people will $e offended.
(a) -e)as %nows that this is not sufficient , so they say that the people will $e so offended that
they"ll want to retaliate
(i) the idea that this is fihtin words won"t wor%
(2) state has an interest in preser#in the sym$ol of the fla and $urnin it undermines the state"s
interest in national unity
#) (<"Brien test) the 'aHrit# 0a#0 t.at t.i0 a%t i0 relate$ t 0u//re00i!<
(1) 't"s related , we %now $1c the statute is limited to $urnins li%ely to offendI statute says that you can
$urn the fla to dispose of it
(2) the lanuae is all a$out treatin the fla w1disrespect
#i) ;issent , the o#t"s interest is sayin that you simply can"t say it this way (this $es the *uestion , why
does the o#t. outlaw it this way()
43
(1) he"s not $ein straihtforward
L. Hate S/ee%. (Cultural Cate2r#-
1) Beauharnais #. 'llinois (13D2)
a) %ri'i!ali4e0 2ru/ li@el , the =t. upheld a race9$ased etc. roup li$el statute
i) this is inconsistent w1 Brande$ur etc. which re*uires that need imminent #iolence
$) thin% mar%et failure , this is the %ind of speech that in#ites counter speech
2) Pli%# &r 0u//re00i!2 .ate 0/ee%.< to effectuate a climate in which e*uality can $e achie#ed
3) +elationship $etween certain %inds of speech and e*uality of opportunity.
14
th
applies only to o#ernments , hate speech applies to pri#ate parties
a) T.e Gver!'e!t B ea0#. 14
th
and A*ual ?rotection. =an $e restricted.
i) Aents for the o#ernment. Jes. 7ame! can $e restricted.
ii) if A: had motto that was racist , you could pro$a$ly say it #iolates 14
th
(then you"d fiure out who could
sue).
iii) Bhat if state flies confederate fla , pro$a$ly racist
$) Private Partie0D 8.e!M
i) Aasy case , statutory ci#il rihts o$liations.
ii) Amployees , terms or conditions of employers.
iii) Bhat a$out fellow employees (not actin as aents)! actin on own(
i#) Amployer lia$ility turns on a per#asi#e! hostile en#ironment.
#) 7ure chillin effect , $ut wor%s out to $e speech >onin. Jou miht $e racist! $ut don"t say it on the &o$!
$ecause you"ll et your employer in trou$le. 7o &ust don"t say it here.
c) E$u%ati!al I!0tituti!0
i) ?ri#ate uni#ersities (?u$lic ones are aents of the o#ernment)
(1) +eulated $y states9 under statutory re*uirements of non9discrimination.
ii) H8 A@ut Fa%ult#M Di&&ere!t &r' %8r6er0M
(1) 7pecial considerationM
(2) =ertainly faculty can"t harassM
(3) '"d prefer only to meet with =hristiansM
iii) H8 a@ut 0tu$e!t0M
(1) )rivate uni#ersities can silence their students.
(2) ?u$lic @ni#ersities 9 fellow students , $iest stretch to apply ci#il rihts norms at the outer frines.
(3) ;on"t ha#e same control o#er students as o#er faculty! staff (aents).
(4) <n a campus! it"s their whole life. But itUs a touh stretch to silence their studentsM.
d) N8 8e7re at t.e @tt' & /ile B /urel# /rivate 0/ee%.O
i) 9nder no legal obligation to show e%ual respect&
ii) A lot , not $iots! $ut associational preferences.
iii) -his is who ' fa#orM and that"s that.
i#) ,ith respect to purely private relations 1 a moral and social harm% not a legal harm.
4) R.A.;. v. Cit# & St. Paul ()99E- (p.14D1)
a) Facts: a teenaer is prosecuted under a Bias9/oti#ated =rime <rdinance for $urnin a cross on the lawn of
an African9American family"s home.
$) 'ssue: can a statute that restricts offensi#e speech $ased on a disappro#al of the messae contained therein
sur#i#e 1
st
amendment scrutiny(
c) ;ecision: (7calia) -he ordinance is facially unconstitutional $1c it prohi$its otherwise permitted speech
solely on the $asis of the su$&ects the speech addresses. Gvt. 'a# !t re2ulate 0/ee%.D i!%lu$i!2 &i2.ti!2
8r$0D @a0e$ ! .0tilit# r &avriti0' t8ar$0 t.e u!$erl#i!2 'e00a2e eC/re00e$.
i) the 7.=t. says that the statute is o#er$road , it co#ers a lot of speech that the state can"t suppress
44
ii) the /0 7.=t. upheld the statute on the round that it outlawed fihtin words (they relied on a $road
#iew of =haplins%y , $ut only the narrow #iew of =haplins%y face9to9face! has sur#i#ed).
(1) construed fihtin words $eyond what the =t. permits , this 2e!eral !ti! t.at 8r$0 t.at i!&li%t
i!Hur# %ul$ @e utla8e$ 8a0.e$ a8a# a l!2 ti'e a2
d) -oes RA. mean that you have a 6
st
amendment right to burn a cross in someone elses yard+
i) 0o. -his conduct could ha#e $een punished under any of a num$er of laws that are speech9content
neutral.
e) without the race aspect! this law appears to $e a content9$ased law reulates communication $y its content
f) $f a law about speech is content#based it either has to be one of the unprotected categories or be subject
to strict scrutiny
) 7calia sees this case as one of political correctness and fihtin words , out of a uni#erse of fihtin words!
the state is censorin some and not others $ased on their #iewpointI the line drawn within the fihtin words
cateory is $ased on #iewpoint this is unconstitutional
i) the ct. says that the law is #iewpoint9$ased rather than harm9$ased , it seems a $it forced to call this
#iewpoint discrim thouh
h) "a0i% /ri!%i/le , even when the state is regulating only unprotected speech% any lines it draws b&w sets of
unprotected speech must themselves comport with the 5
st
amendment
i) :upu accepts the principle of +AF $ut not the application to race9$ased law
D) Bisconsin #. /itchell (1333)(p.14C4)
a) Facts: Bisconsin statute that enhances sentences for selectin a #ictim $ased on race
$) ;ecision: the court unanimously upheld the statute
i) why is this different from RA.+ $t seems that he sentence is being enhanced as a result of your
viewpoint+
(1) t.e %t. 0a#0 t.at a 0tate %a! 'a6e ra%e-@a0e$ 'tive0 /art & a %ivil 8r!2 eve! i& t.e evi$e!%e
& it i0 $erive$ &r' a ra%i0t 'e00a2e , the *uality of a moti#e can $e ta%en into account when
definin a crime or its punishment and can use the words of the perpetrator as proof of the moti#e
c) the effect of this case was to limit the holdin of +AF to #iewpoint9selecti#e laws aimed e)pressly at
otherwise unprotected words or sym$ols
C) Blac% #. =ommonwealth of FA.1Alliot E <"/ara #. Firinia (4
th
=ir.)
a) Facts: statute ma%in it a crime to $urn a cross on the property of another is the statute constitutional(
Alliot didn"t ha#e permission! Blac% did.
$) can you say that cross9$urnin per se represents an intent to inflict $odily harm(
i) there is a eneral history associated with $urnin crosses
ii) $ut it would $e difficult to sustain the statute w1o the intent to intimidate aspect , it would $e o#er$road
c) does 6intent to intimidate8 sa#e the statute(
i) does the prime facie pro#ision undo it if it does sa#e the statute(
(1) this puts the $urden of persuasion a$out the speech that is $ein protected on the defendant
d) the 7.=t. may say that the statute is o#er$road $1c it is not limited to true threats , $ut if ha#e D &udes who
aree w1+AF! it may $e unconstitutional as $ein #iewpoint9$ased
e) 'f the law was limited to cross9$urnins intended to create fear of $odily harm(
i) would Alliot"s con#iction $e upheld( 't li%ely would $e upheld (white neih$or puts $urnin cross in
$lac% neih$or"s yard)
ii) would Blac%"s( :i%ely not upheld.
4D