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Keyed to:
Chemerinsky
Second Edition
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2 Marbury v. Madison
Table of Contents
CHAPTER I. The Federal Judicial Power......................................................................11
Marbury v. Madison......................................................................................................12
United States v. Emerson..............................................................................................13
Silveira v. Lockyer........................................................................................................15
Ex parte McCardle........................................................................................................17
United States v. Klein...................................................................................................18
Plaut v. Spendthrift Farm, Inc.......................................................................................19
Allen v. Wright.............................................................................................................20
Singleton v. Wulff.........................................................................................................21
Elk Grove Unified School Dist. v. Newdow................................................................22
United States v. Richardson..........................................................................................24
Flast v. Cohen...............................................................................................................25
Valley Forge Christian College v. Americans United for the Separation of Church and
State, Inc., et al..............................................................................................................26
Poe v. Ullman................................................................................................................27
Abbott Laboratories v. Gardner....................................................................................28
Friends of the Earth, Incorporated v. Laidlaw Environmental Services.......................29
United States Parole Commission v. Geraghty.............................................................30
Baker v. Carr.................................................................................................................31
Vieth v. Jubelier............................................................................................................32
Powell v. McCormack..................................................................................................34
Goldwater v. Carter.......................................................................................................35
Nixon v. United States..................................................................................................36
CHAPTER II. The Federal Legislative Power...............................................................38
McCulloch v. Maryland................................................................................................39
Gibbons v. Ogden.........................................................................................................40
United States v. E. C. Knight Co..................................................................................41
Carter v. Carter Coal Co...............................................................................................42
Houston, East & West Railway Company v. United States.........................................43
A.L.A. Schechter Poultry Corporation v. United States...............................................44
Hammer v. Dagenhart...................................................................................................45
Champion v. Ames........................................................................................................47
National Labor Relations Board v. Jones & Laughlin Steel Corp................................48
United States v. Darby..................................................................................................49
Wickard v. Filburn........................................................................................................50
Heart of Atlanta Motel, Inc. v. United States...............................................................51
Katzenbach v. McClung, Sr. and McClung, Jr.............................................................52
National League of Cities v. Usery...............................................................................53
Garcia v. San Antonio Metropolitan Transit Authority................................................54
United States v. Lopez..................................................................................................56
United States v. Morrison.............................................................................................58
Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers.....59
Pierce County Washington v. Guillen..........................................................................61
New York v. United States...........................................................................................63

Printz v. United States...................................................................................................64
Reno v. Condon............................................................................................................65
United States v. Butler..................................................................................................66
Sabri v. United States....................................................................................................67
South Dakota v. Dole....................................................................................................69
United States v. Morrison.............................................................................................70
Katzenbach v. Morgan and Morgan..............................................................................71
City of Boerne v. Flores................................................................................................72
Fitzpatrick v. Bitzer......................................................................................................73
Seminole Tribe of Florida v. Florida............................................................................74
Alden v. Maine..............................................................................................................75
CHAPTER III. The Federal Executive Power................................................................76
Youngstown Sheet & Tube Co. v. Sawyer...................................................................77
United States v. Richard M. Nixon, President of the United States.............................79
William J. Clinton, President of the United States v. City of New York.....................80
A.L.A. Schechter Poultry Corporation v. United States...............................................81
Panama Refining Co. v. Ryan.......................................................................................82
Whitman v. American Trucking Assn., Inc..................................................................83
Immigration and Naturalization Services v. Jagdish Rai Chadha.................................85
Alexia Morrison, Independent Counsel v. Theodore B. Olson.....................................87
United States v. Curtiss-Wright Export Corp...............................................................89
Dames & Moore v. Regan, Secretary of the Treasury..................................................90
Hamdi v. Rumsfeld.......................................................................................................91
Richard Nixon v. A. Ernest Fitzgerald..........................................................................94
William Jefferson Clinton v. Paula Corbin Jones.........................................................95
CHAPTER IV. Limits On State Regulatory And Taxing Power....................................96
Lorillard Tobacco Co. v. Reilly....................................................................................97
Florida Lime & Avocado Growers, Inc v. Paul, Director, Department of Agriculture of
California....................................................................................................................100
Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development
Commission................................................................................................................101
Hines, Secretary of Labor ad Industry of Pennsylvania v. Davidowitz......................102
H.P. Hood & Sons, Inc v. Du Mond, Commissioner of Agriculture and Markets of
New York....................................................................................................................103
Aaron B. Cooley v. Board of Wardens of the Port of Philadelphia............................104
South Carolina State Highway Department v. Barnwell Brothers, Inc......................105
Southern Pacific Co. v. Arizona.................................................................................106
City of Philadelphia v. New Jersey.............................................................................108
C & A Carbone, Inc. v. Town of Clarkstown, New York..........................................109
Hughes v. Oklahoma...................................................................................................110
Hunt, Governor of the State of North Carolina v. Washington State Apple Advertising
Commission................................................................................................................111
Exxon Corporation v. Governor of Maryland.............................................................112
West Lynn Creamery, Inc. v. Healy, Commissioner of Massachusetts Department of
Food and Agriculture..................................................................................................114
State of Minnesota v. Clover Lead Creamery Co.......................................................115

Dean Milk Co. v. City of Madison, Wisconsin...........................................................116
Maine v. Taylor and United States.............................................................................117
Loren J. Pike v. Bruce Church, Inc.............................................................................118
Bibb, Director, Department of Public Safety of Illinois v. Navajo Freight Lines,
Inc....................................................................................................................................1
19
Raymond Kassel v. Consolidated Freightways Corporation of Delaware.................120
CTS Corp. v. Dynamics Corp. of America.................................................................121
Western & Southern Life Insurance Co. v. State Board of Equalization of
California...........................................................................................................................
........123
Reeves, Inc v. William Stake......................................................................................124
South-Central Timber Development, Inc v. Commissioner, Department of Natural
Resources of Alaska....................................................................................................125
Toomer v. Witsell.......................................................................................................127
United Building and Construction Trade Council of Camden County v. Mayor and
Council of the City of Camden...................................................................................128
Lester Baldwin v. Fish and Game Commission of Montana......................................130
Supreme Court of New Hampshire v. Kathryn A. Piper............................................131
CHAPTER V. The Structure Of The Constitution's Protection Of Civil Rights And Civil
Liberties.........................................................................................................................133
Barron v. Mayor and City Council of Baltimore........................................................134
Slaughter-House Cases (Butchers' Benevolent Association of New Orleans v. Crescent
City Livestock Landing and Slaughter-House Company)..........................................135
Saenz v. Roe................................................................................................................137
Twining v. New Jersey...............................................................................................139
Duncan v. Louisiana...................................................................................................140
The Civil Rights Cases: United States v. Stanley.......................................................141
Marsh v. Alabama.......................................................................................................142
Jackson v. Metropolitan Edison Co............................................................................143
Terry v. Adams...........................................................................................................145
Evans v. Newton.........................................................................................................146
Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc..........147
Lloyd Corp. v. Tanner.................................................................................................148
Hudgens v. National Labor Relations Board..............................................................149
Shelley v. Kraemer......................................................................................................150
Lugar v. Edmondson Oil Co.......................................................................................151
Edmonson v. Leesville Concrete Co...........................................................................153
Burton v. Wilmington Parking Authority...................................................................154
Moose Lodge No. 107 v. Irvis....................................................................................155
Norwood v. Harrison..................................................................................................157
Rendell-Baker v. Kohn...............................................................................................159
Blum v. Yaretsky........................................................................................................161
Reitman v. Mulkey......................................................................................................163
Brentwood Academy v. Tennessee Secondary School Athletic Assn........................165
CHAPTER VI. Economic Liberties..............................................................................168
Allgeyer v. Louisiana..................................................................................................169
Lochner v. New York.................................................................................................171

Coppage v. Kansas......................................................................................................173
Muller v. Oregon.........................................................................................................174
Adkins v. Children's Hospital.....................................................................................175
Weaver v. Palmer Bros. Co.........................................................................................176
Nebbia v. New York...................................................................................................177
West Coast Hotel Co. v. Parrish.................................................................................178
United States v. Carolene Products Co.......................................................................179
Williamson v. Lee Optical of Oklahoma, Inc.............................................................180
BMW of North America, Inc. v. Gore........................................................................181
State Farm Mutual Automobile Insurance Co. v. Campbell.......................................183
Home Building & Loan Assn. v. Blaisdell.................................................................186
Energy Reserves Group, Inc. v. Kansas Power & Light Co.......................................187
Allied Structural Steel Co. v. Spannus........................................................................188
United States Trust Co. v. New Jersey.......................................................................190
Loretto v. Teleprompter Manhattan CATV Corp.......................................................192
Pennsylvania Coal Co. v. Mahon................................................................................193
Miller v. Schoene........................................................................................................194
Penn Central Transportation Co. v. New York City...................................................195
Lucas v. South Carolina Coastal Council...................................................................196
Dolan v. City of Tigard...............................................................................................197
Palazzolo v. Rhode Island..........................................................................................199
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency..........201
Hawaii Housing Authority v. Midkiff........................................................................204
Brown v. Legal Foundation of Washington................................................................205
CHAPTER VII. Equal Protection.................................................................................207
Romer v. Evans...........................................................................................................208
United States Railroad Retirement Board v. Fritz......................................................209
Railway Express Agency, Inc v. New York...............................................................210
New York City Transit Authority v. Beazer...............................................................211
United States Department of Agriculture v. Moreno..................................................212
City of Cleburne, Texas v. Cleburne Living Center, Inc............................................213
Dred Scott v. Sandford................................................................................................214
Korematsu v. United States.........................................................................................215
Loving v. Virginia.......................................................................................................216
Palmore v. Sidoti.........................................................................................................217
Plessy v. Ferguson......................................................................................................218
Brown v. Board of Education.....................................................................................219
Washington v. Davis...................................................................................................220
McCleskey v. Kemp....................................................................................................221
City of Mobile v. Bolden............................................................................................222
Palmer v. Thompson...................................................................................................223
Personnel Administrator of Massachusetts v. Feeney................................................224
Village of Arlington Heights v. Metropolitan Housing Development Corp..............225
Brown v. Board of Education.....................................................................................226
Swann v. Charlotte-Mecklenburg Board of Education...............................................227
Milliken v. Bradley.....................................................................................................229
Board of Education of Oklahoma City Public Schools v. Dowell..............................231
Richmond v. J.A. Croson Co......................................................................................232
Adarand Constructors, Inc. v. Pena............................................................................234
Grutter v. Bollinger.....................................................................................................235
Gratz v. Bollinger........................................................................................................238
Easley v. Cromartie.....................................................................................................240
Frontiero v. Richardson..............................................................................................242
Craig v. Boren.............................................................................................................243
United States v. Virginia.............................................................................................244
Geduldig v. Aiello.......................................................................................................246
Orr v. Orr....................................................................................................................247
Mississippi University for Women v. Hogan.............................................................248
Michael M. v. Superior Court of Sonoma County......................................................249
Rostker v. Goldberg....................................................................................................251
Califano v. Webster....................................................................................................252
Nguyen v. Immigration and Naturalization Service...................................................253
Graham v. Richardson................................................................................................256
Foley v. Connelie........................................................................................................257
Ambach v. Norwick....................................................................................................258
Plyler v. Doe...............................................................................................................259
Massachusetts Board of Retirement v. Murgia...........................................................261
CHAPTER VIII. Fundamental Rights Under Due Process And Equal Protection.......263
Zablocki v. Redhail.....................................................................................................264
Michael H. v. Gerald D...............................................................................................266
Moore v. City of East Cleveland, Ohio.......................................................................268
Meyer v. Nebraska......................................................................................................269
Troxel v. Granville......................................................................................................270
Skinner v. Oklahoma..................................................................................................272
Griswold v. Connecticut.............................................................................................273
Eisenstadt v. Baird......................................................................................................275
Roe v. Wade................................................................................................................276
Planned Parenthood v. Casey......................................................................................277
Stenberg v. Carhart.....................................................................................................279
Maher v. Roe...............................................................................................................281
Planned Parenthood v. Casey......................................................................................282
Bellotti v. Baird...........................................................................................................283
Cruzan v. Director, Missouri Dept. of Health.............................................................284
Washington v. Glucksberg..........................................................................................286
Lawrence v. Texas......................................................................................................288
Whalen v. Roe.............................................................................................................291
Saenz v. Roe................................................................................................................292
Harper v. Virginia State Board of Elections...............................................................293
Kramer v. Union Free School District........................................................................294
Ball v. James...............................................................................................................295
Reynolds v. Sims........................................................................................................296
Bush v. Gore...............................................................................................................297
Boddie v. Connecticut.................................................................................................300
United States v. Kras...................................................................................................301
M.L.B. v. S.L.J............................................................................................................302
Lewis v. Casey............................................................................................................303
San Antonio Independent School District v. Rodriguez.............................................304
Daniels v. Williams.....................................................................................................306
County of Sacramento v. Lewis..................................................................................307
DeShaney v. Winnebago County Dept. of Social Services........................................308
Goldberg v. Kelly........................................................................................................310
Board of Regents v. Roth............................................................................................311
Goss v. Lopez..............................................................................................................312
Paul v. Davis...............................................................................................................313
Mathews v. Eldridge...................................................................................................314
CHAPTER IX. First Amendment: Freedom Of Expression.........................................315
Turner Broadcasting System, Inc. v. Federal Communications Commission............316
Boos v. Berry..............................................................................................................317
Republican Party of Minnesota v. White....................................................................318
City of Renton v. Playtime Theaters, Inc....................................................................321
National Endowment for the Arts v. Finley................................................................322
United States v. American Library Association, Inc..................................................323
Near v. State of Minnesota ex rel. Olsen....................................................................326
New York Times Company v. United States..............................................................327
Nebraska Press Association v. Stuart..........................................................................329
Alexander v. United States.........................................................................................330
Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton.........331
Thomas And Windy Hemp Development Board v. Chicago Park District................333
City of Littleton, Colorado v. Z.J. Gifts D-4, L.L.C...................................................335
United States v. National Treasury Employees Union...............................................337
West Virginia State Board of Education v. Barnette..................................................338
McIntyre v. Ohio Elections Commission....................................................................339
Buckley v. American Constitutional Law Foundation, Inc........................................340
Rust v. Sullivan...........................................................................................................341
Legal Services Corp. v. Velazquez.............................................................................342
Schenck v. United States.............................................................................................346
Frohwerk v. United States...........................................................................................347
Debs v. United States..................................................................................................348
Abrams v. United States.............................................................................................349
Gitlow v. New York....................................................................................................350
Whitney v. California..................................................................................................351
Dennis v. United States...............................................................................................352
Brandenburg v. Ohio...................................................................................................353
Chaplinsky v. New Hampshire...................................................................................354
Gooding v. Wilson......................................................................................................355
R.A.V. v. City of St. Paul, Minnesota.........................................................................356
Feiner v. New York.....................................................................................................357
Beauharnais v. Illinois................................................................................................358
Virginia v. Black.........................................................................................................359
Roth v. United States..................................................................................................362
Paris Adult Theatre v. Slaton......................................................................................363
Miller v. California.....................................................................................................364
New York v. Ferber....................................................................................................365
Ashcroft v. The Free Speech Coalition.......................................................................366
Young v. American Mini Theaters, Inc......................................................................369
City of Erie v. Pap's A.M............................................................................................370
Stanley v. Georgia.......................................................................................................371
Cohen v. California.....................................................................................................372
Federal Communications Commission v. Pacifica Foundation..................................373
Sable Communications of California, Inc. v. Federal Communications Commission374
Reno v. American Civil Liberties Union....................................................................375
Ashcroft v. American Civil Liberties Union...............................................................376
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.......378
Bolger v. Youngs Drug Products Corp.......................................................................379
Central Hudson Gas & Electric Corp. v. Public Service Commission of New York.380
Friedman v. Rogers.....................................................................................................381
Linmark Associates, Inc. v. Township of Willingboro...............................................382
44 Liquormart, Inc. v. Rhode Island...........................................................................383
Lorillard Tobacco Co. v. Reilly..................................................................................384
New York Times Company v. Sullivan......................................................................387
Gertz v. Welch............................................................................................................388
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc...................................................389
Hustler Magazine v. Falwell.......................................................................................390
Cox Broadcasting Corp. v. Cohn................................................................................391
Florida Star v. B.J.F....................................................................................................392
Bartnicki v. Vopper.....................................................................................................393
United States v. O'Brien..............................................................................................396
Texas v. Johnson.........................................................................................................397
Buckley v. Valeo.........................................................................................................398
Nixon v. Shrink Missouri Government PAC..............................................................399
First National Bank of Boston v. Bellotti...................................................................400
Hague v. Committee for Industrial Organization.......................................................401
Schneider v. New Jersey.............................................................................................402
Perry Education Assn. v. Perry Local Educator's Assn..............................................403
Police Department of the City of Chicago v. Mosley.................................................404
Hill et al. v. Colorado..................................................................................................405
Ward v. Rock Against Racism....................................................................................406
Adderley v. Florida.....................................................................................................407
Greer v. Spock............................................................................................................408
Lehman v. City of Shaker Heights..............................................................................409
United States v. Kokinda............................................................................................410
International Society for Krishna Consciousness, Inc. v. Lee....................................411
Arkansas Educational Television Commission v. Forbes...........................................412
Parker v. Levy.............................................................................................................413
Thornburg v. Abbott...................................................................................................414
Shaw v. Murphy..........................................................................................................415
Tinker v. Des Moines Independent Community School District................................417
Bethel School District No. 403 v. Fraser....................................................................418
Hazelwood School District v. Kuhlmeier...................................................................419
National Association for the Advancement of Colored People v. State of Alabama, ex
rel. Patterson...............................................................................................................420
Board of Regents of the University of Wisconsin System v. Southworth..................421
Roberts v. United States Jaycees................................................................................422
Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston....................423
Boy Scouts of America v. Dale...................................................................................424
Minneapolis Star and Tribune Company v. Minnesota Commissioner of Revenue...425
Cohen v. Cowles Media Company.............................................................................426
Branzburg v. Hayes.....................................................................................................427
Red Lion Broadcasting Co. v. Federal Communications Commission......................428
Miami Herald v. Tornillo............................................................................................429
Richmond Newspapers v. Virginia.............................................................................430
Pell v. Procunier..........................................................................................................431
Houchins v. KQED.....................................................................................................432
CHAPTER X. First Amendment: Religion..................................................................433
United States v. Seeger...............................................................................................434
United States v. Ballard..............................................................................................436
Employment Division, Department of Human Resources of Oregon v. Smith..........437
Sherbert v. Verner.......................................................................................................438
Church of the Lukumi Babala Aye v. City of Haileah...............................................439
Locke v. Davey...........................................................................................................440
County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter442
Larson v. Valente........................................................................................................443
Lemon v. Kurtzman....................................................................................................444
Rosenberger v. Rector and Visitors of the University of Virginia.............................445
Santa Fe Independent School District v. Doe.............................................................446
Engel v. Vitale............................................................................................................447
Lee v. Weisman..........................................................................................................449
Mitchell v. Helms........................................................................................................450
Zelman v. Simmons-Harris.........................................................................................451
10
CHAP
TER I.
The
Federa
l
Judici
al
Power
Marbury v. Madison
Citation. 5 U.S. (1 Cranch) 137 (1803).
Brief Fact Summary. William Marbury (Marbury), an end-of-term appointee of

President John Adams (President Adams) to a justice of the peace position in the District
of Columbia, brought suit against President Thomas Jefferson's (President Jefferson)
Secretary of State, James Madison, seeking delivery of his commission.
Synopsis of Rule of Law. The Supreme Court of the United States (Supreme Court) has
constitutional authority to review executive actions and legislative acts. The Supreme
Court has limited jurisdiction, the bounds of which are set by the United States
Constitution (Constitution), which may not be enlarged by the Congress.
Facts. Before the inauguration of President Jefferson, outgoing President Adams

attempted to secure Federalist control of the judiciary by creating new judgeships and
filling them with Federalist appointees. Included in these efforts was the nomination by
President Adams, under the Organic Act of the District of Columbia (the District), of 42
new justices of the peace for the District, which were confirmed by the Senate the day
before President Jefferson's inauguration. A few of the commissions, including
Marbury's, were undelivered when President Jefferson took office. The new president
instructed Secretary of State James Madison to withhold delivery of the commissions.
Marbury sought mandamus in the Supreme Court, requiring James Madison to deliver his
commission.
Issue. Is Marbury entitled to mandamus from the Supreme Court?
Held. No. Case dismissed for want of jurisdiction.
1 • As the President signed Marbury's commission after his confirmation,

the appointment has been made, and Marbury has a right to the
commission
2 • Given that the law imposed a duty on the office of the president to
deliver Marbury's commission, that the Supreme Court has the power to
review executive actions when the executive acts as an officer of the law
and the nature of the writ of mandamus to direct an officer of the
government "to do a particular thing therein specified," mandamus is the
appropriate remedy, if available to the Supreme Court.
3 • To issue mandamus to the Secretary of State really is to sustain an

original action, which is (in this case) outside the constitutional limits of
jurisdiction imposed on the Supreme Court.
Discussion. The importance of Marbury v. Madison is both political and legal. Although
the case establishes the traditions of judicial review and a litigable constitution on which
the remainder of constitutional law rests, it also transformed the Supreme Court from an
incongruous institution to an equipotent head of a branch of the federal government.
12 United States v. Emerson
United States v. Emerson
Citation. 46 F. Supp. 2d 598 (N.D. Texas 1999).
Brief Fact Summary. The Defendant, Timothy Joe Emerson (Defendant), moved to
dismiss his indictment under 18 U.S.C. § 922(g)(8) for possession of a firearm while
being under a restraining order. The Defendant argued that the statute violated his rights
under the Second Amendment of the United States Constitution (Constitution).
Synopsis of Rule of Law. The Second Amendment of the Constitution confers an

individual right, which may not be abridged without due process.
Facts. During his divorce proceeding, a restraining order was placed on Defendant.
Defendant was indicted for possession of a firearm while under that order, in violation of
18 U.S.C. § 922(g)(8). Defendant claims that the statute is unconstitutional, as it abridges
his right to keep and bear arms as guaranteed by the Second Amendment of the
Constitution.
Issue. Does the Second Amendment of the Constitution confer an individual right to keep
and bear arms?
Held. Yes. Indictment overturned.
1 • Textual analysis shows one dependent ("A well regulated Militia, being
necessary to the security of a free state") and one independent ("the right
of the people to keep and bear Arms shall not be infringed") clause. The
District Court for the Northern District of Texas argued that the dependent
clause does not qualify, but rather, shows the purpose of the independent
clause.
2 • Historical analysis focuses on the Anglo-American history of individual

arms possession, the Revolutionary concern of thwarting tyranny and
Madison's vision that the Second Amendment of the Constitution be
placed in Article 1, Section 9, among the other individual freedoms.
3 • Structural analysis argues that the placement of the Second Amendment

in the Bill of Rights is indicative of its application to individuals.
4 • The court finally argues that prudential concerns should not outweigh the
importance of securing the freedoms guaranteed by the Constitution.
5 • Because 18 U.S.C. § 922(g)(8) allowed a state court to deprive a party to

a divorce proceeding of his Second Amendment rights without specific
findings, the statute is unconstitutional.
Discussion. United States v. Emerson demonstrates several methods of analyzing the
meaning of a constitutional provision including: (i) plain text, (ii) historical, (iii)
structural, (iv) stare decisis, and (v) policy concerns. In this case, the Northern District of
Texas balances the outcomes of the various methods and applies the result to the statute
at hand.
14 Silveira v. Lockyer
Silveira v. Lockyer
Citation. 312 F.3d 1052 (9th Cir. 2002), cert. denied, 540 U.S. 1046 (2003)
Brief Fact Summary. Assault weapon owners or those who wished to acquire assault
weapons, brought suit against the state of California for certain laws the state passed
strengthening the state's restrictions on the "possession, use, and transfer" of assault
weapons.
Synopsis of Rule of Law. The Second Amendment of the United States Constitution (the
"Constitution") does not grant an individual right to possess or own arms.
Facts. In 1999, the state of California amended portions of its gun control law, entitled
the California Assault Weapons Control Act (the "Act"), applying to semi-automatic
"assault weapons." The laws strengthened the state's restrictions on the "possession, use,
and transfer" of such weapons. The Plaintiffs, Silveira and other current California
"assault weapon" owners or those who wish purchase an "assault weapon" (the
"Plaintiffs"), brought suit alleging that California's amendments violated the Second
Amendment of the Constitution.
Issue. Does the Act and its 1999 Amendments violate the Plaintiffs' Second Amendment
rights?
Held. No. The Second Amendment of the Constitution does not grant an individual right
to possess or own firearms. The court recognized three interpretations of the Second
Amendment of the Constitution various groups have advocated. First, "the 'traditional
individual rights' model, holds that the Second Amendment of the Constitution
guarantees to individual private citizens a fundamental right to possess and use firearms
for any purpose at all, subject only to limited government regulation." Second, the
"limited individual rights model" which advocates that "individuals maintain a
constitutional right to possess firearms insofar as such possession bears a reasonable
relationship to militia service." The third, the "collective rights" view espouses "that the
Second Amendment right to 'bear arms' guarantees the right of the people to maintain
effective state militias, but does not provide any type of individual right to own or
possess weapons. Under this theory of the amendment, the federal and state governments
have the full authority to enact prohibitions and restrictions on the use and possession of
firearms, subject only to generally applicable constitutional constraints, such as due
process, equal protection, and the like." The court adopts the third view, the "collective
rights" view.
1 • The Second Amendment reads: "A well regulated Militia being necessary to
the security of a free State, the right of the people to keep and bear Arms, shall
not be infringed." The majority observed that the text alone does not provide
the answer to which theory of the Second Amendment is correct. In reaching
its conclusion, the court determined that the use of the word "militia" refers to
a state military force, not to all persons in a state as a Fifth Circuit decision
15 Silveira v. Lockyer
1 advocated. The court then recognizes the significance of the use of the phrase
to "bear Arms" instead of to "possess" or "own" arms. The court determined
that the use of the phrase "bear Arms" refers to a military function or purpose.
The court then found that the phrase "keep and bear" had to be construed
together.
2 • The court observed "[w]hen the second clause is read in light of the first, so
as to implement the policy set forth in the preamble, [ ] the most plausible
construction of the Second Amendment is that it seeks to ensure the existence
of effective state militias in which the people may exercise their right to bear
arms, and forbids the federal government to interfere with such exercise."
Additionally, the historical context surrounding the passage of the
Amendment supports the collective rights model. The courts historical
research revealed "the Second Amendment was enacted in order to assuage
the fears of Anti-Federalists that the new federal government would cause the
state militias to atrophy by refusing to exercise its prerogative of arming the
state fighting forces, and that the states would, in the absence of the
amendment, be without the authority to provide them with the necessary
arms." Further, that "[t]he debates of the founding era demonstrate that the
second of the first ten amendments to the Constitution was included in order
to preserve the efficacy of the state militias for the people's defense--not to
ensure an individual right to possess weapons."
Discussion. This case offers an interesting analysis of the Second Amendment of the
Constitution and how its main purpose was to "protect the people from the threat of
federal tyranny by preserving the right of the states to arm their militias."
16 Ex parte McCardle
Ex parte McCardle
Citation. 74 U.S. 506 (1868).
Brief Fact Summary. McCardle, a newspaper editor arrested for writing articles critical
of Reconstruction, petitioned the Supreme Court of the United States (United States) for a
writ of habeas corpus. McCardle argued the Military Reconstruction Act (the Act) and his
prosecution were unconstitutional.
Synopsis of Rule of Law. Congress, by repealing the United State Supreme Court's
(Supreme Court) appellate review of writs of habeas corpus, effectively took jurisdiction
over McCardle's case away from the Supreme Court.
Facts. After writing a series of articles that were highly critical of Reconstruction, federal
officials arrested McCardle under the Act. McCardle contended the Act was
unconstitutional in providing military trials for civilians and claimed his prosecution
violated provisions of the Bill of Rights, including the First, Fifth, and Sixth
Amendments of the United States Constitution (Constitution). Before the Supreme Court
ruled on the merits, Congress passed a law repealing Supreme Court appellate review of
writs of habeas corpus.
Issue. Does the Act of Congress repealing Supreme Court appellate review of habeas
writs remove jurisdiction in McCardle's case?
Held. Yes. Case dismissed for want of jurisdiction.
1 • The appellate jurisdiction of the Supreme Court is not conferred by

Congress. However, the Constitution confers jurisdiction "with such
exceptions and under such regulations as Congress shall make."
2 • Due to the constitutional authorization, the repeal of jurisdiction is valid.
Discussion. Another politically-charged case, Congress repealed jurisdiction out of a fear

that the Supreme Court would rule adversely on the constitutionality of the Military
Reconstruction Act. However, the Supreme Court notes that it is "not at liberty to inquire
into the motives of the legislature," but only the constitutional authority to divest
jurisdiction is examinable by the Supreme Court.
17 United States v. Klein
United States v. Klein
Citation. 80 U.S. 128 (1871).
Brief Fact Summary. The Respondent, Klein (Respondent), brought suit in the United
States Court of Claims, seeking compensation for property taken during the Civil War.
The Respondent now argues for affirmation on appeal.
Synopsis of Rule of Law. Although Congress has power to limit the appellate
jurisdiction of the federal courts, it may not use this power to effectively prescribe a rule
for the decision of cases before the courts.
Facts. The Supreme Court of the United States (Supreme Court) had ruled that a
presidential pardon had the effect of proof one did not support the rebellion. This allowed
pardoned individuals to petition for return of property or compensation from the federal
government. In response to the decision, Congress passed a statute stating that a pardon
was inadmissible as evidence in a claim for seized property. Congress went further and
required that if a court find that a pardon was secured without an express disclaimer of
guilt (of aiding the rebellion), such finding was to act as a bar to jurisdiction. The estate
of the Respondent who was pardoned had received a judgment granting recovery from
the Court of Claims. The United States now appeals, arguing that the statute requires
dismissal of the case for want of jurisdiction.
Issue. Is the statute in question a valid exercise of congressional authority under the
Exceptions and Regulations Clause of the United States Constitution (Constitution)?
Held. No. Judgment affirmed.
1 • By requiring the courts to make a specific finding of fact in a case over

which the court has jurisdiction and then removing the court's jurisdiction
after the finding, Congress is not limiting jurisdiction, but rather
prescribing a rule of decision for the courts.
2 • Congress impaired the presidential pardons by requiring that they be

inadmissible as evidence in these cases. The President of the United States
has the constitutional authority to pardon offenses. By disallowing the full
effect of the pardons, Congress attempted to reduce the President's
constitutional authority.
Discussion. United States v. Klein does not represent Exceptions and Regulations
jurisprudence as much as it represents the separation of powers outlined in the United
States Constitution. The statute overreached the power of Congress by attempting to
exercise authorities constitutionally delegated to the judicial and executive branches.
18 Plaut v. Spendthrift Farm, Inc.
Plaut v. Spendthrift Farm, Inc.
Citation. 514 U.S. 211 (1995).
Brief Fact Summary. The Plaintiff - Petitioner, Plaut (Petitioner), sued the Defendant -
Respondent, Spendthrift Farm (Respondent), under § 10 of the Securities Exchange Act

of 1934 (the Act). The suit was dismissed for not being filed in a timely fashion.
Synopsis of Rule of Law. Congress may not require the federal courts to reopen a case
after a court has rendered final judgment.
Facts. In 1991, the Supreme Court of the United States (Supreme Court) ruled that
actions brought under § 10(b) and Rule 10(b)(5) of the Act must be brought within one
year of discovering the facts leading to the violation and within three years of the
violation itself. In response, Congress amended the law to allow cases filed before the
decision to go forward, if they could have been brought under the previous law. Petitioner
had brought suit prior to the decision, but the suit was dismissed in accordance with the
Supreme Court's ruling. Petitioner attempted to resume prosecution of the dismissed case.
Issue. May Congress require Article III courts to reopen cases on which they have passed
judgment?
Held. No. Appeals court ruling affirmed.
1 • Congress may pass retroactive legislation that affects cases still pending
appeal. However, this amendment requires cases to resume prosecution
after judgment has been rendered.
2 • A judgment "conclusively resolves the case." The statute in question

offends this postulate.
Discussion. Justice Antonin Scalia (J. Scalia) argues Congress has violated the separation
of the judicial and legislative powers, by requiring courts to set aside final judgments,
which the framers of the constitution envisioned as dispositive.
19 Allen v. Wright
Allen v. Wright
Citation. 468 U.S. 737 (1984).
Brief Fact Summary. Parents of black public school children brought suit against the
Internal Revenue Service ("IRS"), alleging that insufficient denial of tax-exempt status to
racially discriminatory private schools interferes with their children's ability to receive an
education in public schools.
Synopsis of Rule of Law. Article III standing requires that a plaintiff allege a harm
directly traceable to specific action on the part of the defendant.
Facts. Parents of black public school children sued the IRS, alleging that by not denying
tax-exempt status to racially discriminatory private schools, the IRS was harming their
children in two ways. First, the IRS conduct was in fact giving federal financial aid to
racially segregated institutions. Second, the conduct encourages the operation and
expansion of such schools and this interferes with desegregation of the public schools.
Issue. Does the harm alleged by the respondents fulfill the constitutional requirement of
standing?
Held. No. Reversed and remanded.
1 • Addressing the first allegation, Justice Sandra Day O'Connor (J.

O'Connor) notes "an asserted right to have the government act in
accordance with the law" is insufficient to grant jurisdiction. Extending
this line of argument, she says "[a] black person in Hawaii could challenge
the grant of a tax exemption to a racially discriminatory school in Maine."
Furthermore, the issue of funding the schools does not harm the
respondents directly.
2 • The second allegation does present harm, that the respondents' children
are being denied an integrated educational experience. However, the IRS's
actions are too far attenuated from this harm. There is no evidence that
denying tax-exempt status to the private schools in question would result
in a more integrated public education system.
Dissent. Justice John Paul Stevens (J. Stevens), dissenting, postulates that removing tax-
exempt status from the private schools, will make the schools more expensive to operate,
causing them to be less cost competitive or requiring them to change their admissions
policies to remain open.
Discussion. While the dissent's argument has theoretical soundness - removing tax-
exempt status will cause an immediate increase in cost - the majority points out that this
does not guarantee integration. For example, Private donors could still make up the
difference in lost funding.
20 Singleton v. Wulff
Singleton v. Wulff
Citation. 428 U.S. 106 (1976).
Brief Fact Summary. Two Missouri physicians sued the state, charging that Missouri's
statute prohibiting Medicaid payments for abortions which are not "medically indicated"
unconstitutionally interferes with the decision to terminate a pregnancy.
Synopsis of Rule of Law. The rule prohibiting third-party standing should not apply
when the relationship of the litigant and the one whose rights he asserts is significantly
close and where there is some obstacle to the first party bringing a suit on his own.
Facts. Two Missouri physicians sued the state, showing that they had provided abortions
to Medicaid-eligible patients. The state had denied payment for these services on
statutory grounds. The physicians stated that they would continue to perform such
procedures and stood to be denied payments in the future.
Issue. Do the physicians have standing to bring the suit when the immediately affected
are indigent women seeking abortions?
Held. Yes. Court of appeals ruling affirmed.
1 • Two standing questions were presented: (i) whether plaintiff sustained
injury in fact and (ii) whether they are the proper individuals to assert the
constitutional right in question. The first question is easily answered.
Here, the physicians have been denied compensation and stand to be
denied further compensation.
2 • As to the second question, the general rule of prohibiting third-party
standing only applies if the relationship between the litigant and the party
directly affected is such that the litigant does not effectively serve as a
proponent of the affected party and if there is some impediment to the
affected party bringing suit himself. Here, the litigant was deemed to
effectively serve as a proponent.
Discussion. The Supreme Court of the United States (Supreme Court) does not say that
there must be an absolute obstacle to the directly affected party bringing suit, only that
there is some genuine impediment (e.g., protecting the privacy of her decision to
terminate a pregnancy, the imminent mootness of her claim, etc.).
21 Elk Grove Unified School Dist. v. Newdow
Elk Grove Unified School Dist. v. Newdow
Citation. 124 S.Ct. 2301 (2004)
Brief Fact Summary. A father, who was an atheist, sued his child's school district for
allowing the Pledge of Allegiance (the "Pledge") to be said by the district's students.
Synopsis of Rule of Law. "[I]t is improper for the federal courts to entertain a claim by a
plaintiff whose standing to sue is founded on family law rights that are in dispute when
prosecution of the lawsuit may have an adverse effect on the person, [the child in this
case] who is the source of the plaintiff's claimed standing."
Facts. The teachers in the Petitioner, Elk Grove Unified School Dist. (the "Petitioner"),
lead the children in their classes in the recitation of the Pledge every morning. The
Respondent, Michael A. Newdow (the "Respondent"), is an atheist whose daughter
participates in the recitation of the Pledge. The Respondent argued that since the Pledge
includes the words "under God" it entailed religious indoctrination of his child in
violation of the First Amendment of the United States Constitution (the "Constitution").
1 • The district court concluded the Respondent has standing to sue on behalf of
his daughter as "next friend". The Ninth Circuit Court of Appeals in its first
opinion, found that the Respondent "has standing 'as a parent to challenge a
practice that interferes with his right to direct the religious education of his
daughter.' " On August 5, 2002, the Respondent's child's mother filed a motion
for leave to intervene or to dismiss the complaint. The child's mother, Ms.
Banning, had "exclusive legal custody" of the child which "include[ed] the
sole right to represent [the daughter's] legal interests and make all decision[s]
about her education" and welfare. She alleged "her daughter is a Christian
who believes in God and has no objection either to reciting or hearing others
recite the Pledge of Allegiance, or to its reference to God." The California
Superior court entered an order "enjoining [the Respondent] from including
his daughter as an unnamed party or suing as her 'next friend.' " The Ninth
Circuit addressed the California Superior Court's findings and concluded "that
Newdow no longer claimed to represent his daughter, but unanimously
concluded that 'the grant of sole legal custody to Banning' did not deprive
Newdow, 'as a noncustodial parent, of Article III standing to object to
unconstitutional government action affecting his child.' "
Issue. Does the Respondent have standing to bring this action?

Held. No. The flag is "a symbol of our Nation's indivisibility and commitment to the
concept of liberty." The "under God" language was added to the Pledge in 1954.
California law requires all students to engage in patriotic activities every morning, and
further recognizes that the Pledge satisfies that requirement. Students who object on
religious grounds may abstain from participating in the activities.
22 Elk Grove Unified School Dist. v. Newdow
1 • The court observed that standing is a prerequisite to any party bringing a
federal case. The court observed "[o]ne of the principal areas in which this
Court has customarily declined to intervene is the realm of domestic
relations." Further, "[t]he whole subject of the domestic relations of husband
and wife, parent and child, belongs to the laws of the States and not to the
laws of the United States." The court has went so far as to recognize a
"domestic relations exception … divest[ing] federal courts of power to issue
divorce, alimony, and child custody decrees." Additionally, "that it might be
appropriate for the federal courts to decline to hear a case involving 'elements
of the domestic relationship,' [ ] even when divorce, alimony, or child custody
is not strictly at issue[.]" Based on the February 6, 2002 custody order, the
Supreme Court determined "that the two parents should " 'consult with one
another on substantial decisions relating to' " the child's " 'psychological and
educational needs.' " However, additionally, the order authorized Banning to "
'exercise legal control' " if the parents could not reach " 'mutual agreement.' "
Meaning, she was given the tiebreaking vote.
2 • Further, "it is improper for the federal courts to entertain a claim by a
plaintiff whose standing to sue is founded on family law rights that are in
dispute when prosecution of the lawsuit may have an adverse effect on the
person [the child in this matter] who is the source of the plaintiff's claimed
standing. When hard questions of domestic relations are sure to affect the
outcome, the prudent course is for the federal court to stay its hand rather than
reach out to resolve a weighty question of federal constitutional law." As
such, the Respondent, due to the state of California's finding that he lacks
status to bring a "next friend" suit, lacks standing.
Concurrence. Judge William Rehnquist ("J. Rehnquist"), Judge Sandra Day O'Connor
("J. O'Connor") and J. Clarence Thomas ("J. Thomas") concur in the judgment, but
dissented in part. The dissenting justices object to the majority's "erect[ion] [of] a novel
prudential standing principle in order to avoid reaching the merits of the constitutional
claim."
Discussion. It is very interesting to read the majority's decision alongside the dissenting
opinion, to see how the standing doctrine can be construed in different ways.
23 United States v. Richardson
United States v. Richardson
Citation. 418 U.S. 166 (1974).
Brief Fact Summary. Richardson, the Plaintiff-Respondent (Plaintiff) sued Congress.
He alleged that public reporting under the Central Intelligence Agency ("CIA") Act of
1949 violates Article I, s 9, cl. 7 (the Act) of the United States Constitution
(Constitution), the statement and account clause.
Synopsis of Rule of Law. Standing is denied to "generalized grievances."
Facts. Plaintiff sued Congress, hoping to compel release of detailed funding records of
CIA funding. Plaintiff based his standing to sue on his status as a United States taxpayer.
Issue. Is taxpayer status sufficient to establish standing to bring suit in this case?
Held. No. Appeals court ruling reversed and remanded.
1 • The Supreme Court of the United States (Supreme Court) applied the
two-prong test developed in Flast v. Cohen, 392 U.S. 83 (1968). To
establish taxpayer standing, a plaintiff must (a) challenge an enactment
under the taxing and spending clause (in Art. I, § 8 of the constitution) and
(b) claim the enactment exceeds specific constitutional limitations on
taxing and spending.
2 • The Supreme Court argued that, as Plaintiff cannot state a specific injury
that affects him differently than any other taxpayer, the suit represents a
general grievance and falls outside the federal courts' authority to review
cases and controversies.
Dissent. Justice Potter Stewart (J. Potter) argued that the Flast test is inappropriate, as the
Plaintiff is asking for the determination of a duty that has not been honored by the
government.
Discussion. The majority holds tightly to the narrow exception carved out by Flast in
large part to prevent other parties from bringing suits against the government arguing
standing only as taxpayers.
24 Flast v. Cohen
Flast v. Cohen
Citation. 392 U.S. 83 (1968).
Brief Fact Summary. The Appellant, including Flast (Appellants), brought suit,
claiming standing solely as taxpayers, seeking to enjoin expenditure of federal funds on
religious schools. Appellants claimed such expenditures violated the Establishment and
Free Exercise clauses of the First Amendment of the United States Constitution
(Constitution).
Synopsis of Rule of Law. Taxpayer standing is appropriate when the plaintiff challenges
an enactment under the taxing and spending clause of the Constitution and the enactment
exceeds specific constitutional limitations on taxing and spending.
Facts. Congress had funded, under Titles I and II of the Elementary and Secondary
Education Act of 1965 (the Act), writing, arithmetic, and other subjects in religious
schools. Appellants brought suit, claiming that these expenditures violated the
Establishment and Free Exercise clauses of the First Amendment of the Constitution. The
only claim to standing provided was that all Appellants were taxpayers.
Issue. Have the Appellants established standing to bring suit in an Article III court?
Held. Yes. Reversed and remanded.
1 • The Supreme Court of the United States (Supreme Court) states that
standing refers to the plaintiff(s) having a "personal stake in the outcome"
of the case. In the taxpayer context, the Supreme Court outlines two
requirements to show this personal stake.
2 • The first requirement is that the taxpayer must challenge the
constitutionality only of exercises under the taxing and spending clause of
the Constitution. Expenditures which are incidental to a regulatory statute
or other incidental expenditures do not give rise to taxpayer standing.
3 • The second requirement is that the moving party must allege that
Congress acted beyond the scope of a particular constitutional provision. It
is insufficient to allege spending beyond the powers delegated under Art.
I, § 8 of the Constitution.
Dissent. Justice John Marshall Harlan (J. Harlan) argues that the two requirements
outlined by the majority do not establish that P has a personal stake in the outcome.
Discussion. The Supreme Court establishes a two-prong test that allows taxpayer
standing without opening the federal courts to generalized grievances.
25 Valley Forge Christian College v. Americans United for the Separation of Church and State, Inc., et al.
Valley Forge Christian College v. Americans United for the Separation
of Church and State, Inc., et al.
Citation. 454 U.S. 464 (1982).
Brief Fact Summary. The Respondents, Americans United for the Separation of Church
and State, Inc. (Respondent), brought suit as taxpayers. They alleged that the Department
of Health Education and Welfare grant of United States property to a religious college
violated the Establishment and Free Exercise clause of the First Amendment of the
United States Constitution (Constitution).
Synopsis of Rule of Law. Taxpayer standing is appropriate when the plaintiff challenges
an enactment under the taxing and spending clause and the enactment exceeds specific
constitutional limitations on taxing and spending.
Facts. Under the property clause, Art. IV, § 3, cl. 2 of the Constitution, Congress may
dispose of and regulate property belonging to the United States. Under the Federal
Property and Administrative Services Act of 1949 (the Act), the Department of Health,
Education, and Welfare conveyed a 77-acre parcel to the Petitioner, Valley Forge
Christian College (Petitioner). Respondent sued on behalf of its 90,000 "taxpayer
members," alleging that Congress violated the Establishment Clause with its grant of
property.
Issue. Does the Respondent have standing as a taxpayer to bring this suit?
Held. No. Reversed and remanded. Because Respondents sue on an administrative action
authorized under the property clause of the, they fail the first prong of the standing test
developed in Flast v. Cohen, 392 U.S. 83 (1968), requiring Congressional action under
the taxing and spending clause.
Dissent. Justice William Brennan (J. Brennan) sees the rise of standing jurisprudence as a
means to sidestep deciding important rights issues by effectively slamming "the
courthouse door against plaintiffs who are entitled to full consideration of their claims on
the merits."
Discussion. Regardless of the dissent's moral and fair play arguments, the majority
holding in this case is a straightforward application of the rule developed in Flast v.
Cohen, which has yet to be overturned.
26 Poe v. Ullman
Poe v. Ullman
Citation. 367 U.S. 497 (1961).
Brief Fact Summary. The Appellants, several couples and their physician (Appellants),
brought suit, seeking the overturn of a Connecticut statute prohibiting the use of
contraceptive devices and the giving of medical advice on the use of such devices.
Synopsis of Rule of Law. A penal statute is not ripe for constitutional challenge unless it
is enforced by the state enacting the statute.
Facts. The Connecticut Supreme Court of Errors construed a state penal statute as
prohibiting the use of contraceptive devices and the giving of medical advice on their use.
Appellants included a couple who had several pregnancies result with severely abnormal
progeny which died shortly after birth, a couple whose wife had experienced a severely
traumatic pregnancy and their physician, who believes the safest course of treatment for
the couples includes using contraceptive devices.
Issue. Is the petitioners' claim ripe for judicial review?
Held. No. Judgment affirmed. Connecticut has never attempted to fully prosecute any
case under the statute. Because of this, not only have the Appellants not suffered injury in
fact from the statute, but there is no evidence that they would be prosecuted for acting in
violation of the statute.
Dissent. Justice William Douglas (J. Douglas) argues that the mere threat of prosecution
is injury in fact, that it is "not the choice worthy of a civilized society" to require
individuals to risk penalty for their behavior to have their constitutional rights
determined.
Discussion. Although ripeness is the central issue in Poe, the Supreme Court of the
United States (Supreme Court) does not articulate any clear guidelines to evaluate
ripeness. Nonetheless, the Supreme Court seems to articulate that a penal statute that has
not been enforced is not ripe for judicial review.
27 Abbott Laboratories v. Gardner
Abbott Laboratories v. Gardner
Citation. 387 U.S. 136 (1967).
Brief Fact Summary. The Petitioners, Abbot Laboratories (Petitioners), sought
declaratory judgment on the 1962 amendment to the Federal Food, Drug, and Cosmetic
Act (the Act) that required prescription drug manufacturers to print the "established
name" of the drug on labels and other printed materials that referred to the drug.
Synopsis of Rule of Law. Declaratory judgment is appropriate when the issues are fit for
judicial decision, and there is undue hardship to the parties if such consideration were
withheld.
Facts. The amended Act required pharmaceutical manufacturers to display the
"established name" (to be established by the Secretary of Health, Education, and Welfare)
in type at least half as large as that used for any proprietary name or other designation for
the drug on all printed materials referring to the drug. A group of 37 drug manufacturers
(representing more than 90% of the nation's prescription drug suppliers) brought this suit,
alleging the Commissioner exceeded his authority by requiring the use of the established
name every time the trade name was used in all printed matter relating to the drug.
Issue. Have appellants brought an action ripe for judicial review?
1 • The Supreme Court of the United States (Supreme Court) found the
challenge appropriate at the current time, as all parties agreed that the
issue was purely legal. The issue was, did the Commissioner properly
construe the statute by requiring the establish name to be used every time
the trade name is?
2 • The Supreme Court also found undue hardship on the parties involved in
postponing a judicial decision. The companies would have to spend a large
amount of money changing typefaces and printing new materials, or large
penalties if they refuse to make the changes and a court determines the
Commissioner was proper his construction of the regulation.
Discussion. The general guidelines of Abbott Laboratories continue to apply in ripeness

cases. Note that the concrete nature of the question (did the Commissioner overreach his
statutory authority?) allowed the issue to be fit for judicial decision by an Article III
court.
28 Friends of the Earth, Incorporated v. Laidlaw Environmental Services
Friends of the Earth, Incorporated v. Laidlaw Environmental Services
Citation. 120 S. Ct. 693 (2000).
Brief Fact Summary. Defendant - respondent, Laidlaw Environmental Services
(Defendant), contends that its shutdown of a waste processing facility and its compliance
efforts render a citizen suit under the Clean Water Act moot.
Synopsis of Rule of Law. When a defendant argues that voluntary cessation of an
activity renders a suit moot, the defendant has the burden of proving that the allegedly
wrong behavior could not reasonably be expected to recur.
Facts. Defendant holds a National Pollutant Discharge Elimination System permit.
Plaintiff - Petitioner, Friends of Earth, Incorporated (Plaintiff), alleges Defendant was
violating mercury discharge limits of the Clean Water Act, and brought a citizen suit
against Defendant. Defendant argues that the suit is moot either because it achieved
substantial compliance with the permit guidelines by August 1992 or because of its
shutdown of the facility in question.
Issue. Can Defendant's voluntary conduct sustain a finding of mootness?
Held. Not in this case. Reversed and remanded.
1 • A case compelling compliance requires the Plaintiff to establish the
complained of behavior will continue to occur. However, when a
Defendant asserts mootness on the basis of his voluntary conduct, the
burden is on the Defendant to show the conduct cannot reasonably be
expected to occur in the future.
2 • In the current case, the Defendant has not demonstrated why or how the
complained of actions will not reoccur in the future.
Discussion. The Supreme Court of the United States (Supreme Court) carves out this
mootness exception for obvious reasons. If a defendant can make a case moot simply by
ceasing the complained of activity, the defendant could stop and restart the same activity
for (theoretically) an infinite amount of time without facing a judicial decision on the
activity.
29 United States Parole Commission v. Geraghty
United States Parole Commission v. Geraghty
Citation. 445 U.S. 388 (1980).
Brief Fact Summary. Geraghty, a federal inmate and Plaintiff-Respondent (Plaintiff),
brought suit against the Defendant-Petitioner, the United States Parole Commission
(Defendant). Besides his own suit he also sought certification of the suit as a class action
on behalf of all federal prisoners who are or will become eligible for parole.
Synopsis of Rule of Law. A class action may survive, even if the named Plaintiff's case
becomes moot before certification of the class.
Facts. Plaintiff had twice been denied parole from a federal prison. Plaintiff brought suit
challenging the validity of the Parole Commission's Parole Release Guidelines. The
district court denied Plaintiff's request to certify the suit as a class action on behalf of "all
federal prisoners who are or who will become eligible for release on parole," and also
granted summary judgment for Plaintiff on the merits. Plaintiff was released from prison
while his appeal to the court of appeals was pending.
Issue. May a trial court's denial of a motion to certify a class be reviewed on appeal even
when the named plaintiff's personal suit has been settled or decided?
Held. Yes. Reversed and remanded. The purpose of the "personal stake" requirement is
"to assure that the case is in a form capable of judicial resolution." Justice Harry
Blackmun also argues that the named representative retains a personal stake in obtaining
class certification to satisfy the case or controversy requirement. More importantly,
however, the absence of the named plaintiff does not destroy the format of the dispute as
appropriate for judicial determination.
Discussion. If the personal stake requirement is in place to "assure that the case is in a
form capable of judicial resolution," it is clear that this is met in the case before the claim
became moot. Now, the question is whether or not review of the denial of class
certification will be allowed when there are still putative class members with ripe claims.
As discussed, if the named plaintiff had a personal stake, the case is still "in a form
capable of judicial resolution," if certification of the class is appropriate, regardless of the
plaintiff's absence in the putative class.
30 Baker v. Carr
Baker v. Carr
Citation. 369 U.S. 186 (1962).
Brief Fact Summary. Appellants brought suit, challenging malapportionment of state
legislatures under the Equal Protection Clause of the Fourteenth Amendment.
Synopsis of Rule of Law. An apportionment case may be reviewed on Fourteenth
Amendment grounds, so long as these grounds are independent from political question
elements.
Facts. Apportionment cases had often been brought under the Guaranty Clause of Article
IV, § 4 of the United States Constitution (Constitution), in which the United States
guarantees to the individual states a republican form of government. The Supreme Court
of the United States (Supreme Court) has long held that such challenges present a
political question, not addressable by the courts. In the current case, Appellants
challenged the state apportionment of legislatures under the Equal Protection Clause of
the Fourteenth Amendment.
Issue. Is it possible to bring a malapportionment claim without raising a nonjusticiable
political issue?
1 • In the past, apportionment challengers have generally based their
challenge on the Guaranty Clause of Art. IV, § 4 of the Constitution.
These claims are nonjusticiable as they address issues solely directed to
the political branches of the government by the Constitution. This is a
separation of powers issue.
2 • In Baker v. Carr, the claim is that the Appellants are being denied equal
protection of the laws by being underrepresented in the state legislature.
The Supreme Court rules that the equal protection challenge in this case is
separable from the political questions.
Dissent. In a vigorous dissent, Justice Felix Frankfurter (J. Frankfurter) argues the
political question is inseparable from the equal protection claim and that the Supreme
Court has effectively overturned a century of apportionment jurisprudence. In particular,
the dissent argues that the Supreme Court has opened up all state districting to judicial
oversight.
Discussion. Baker v. Carr is the first of the cases developing the Supreme Court's "one
person, one vote" legislation. This line of cases helped equalize representation between
country and city dwellers in an increasingly urbanized nation.
31 Vieth v. Jubelier
Vieth v. Jubelier
Citation. 541 U.S. 267 (2004)
Brief Fact Summary. The constitutionality of a map drawn by the Pennslyvania General
Assembly establishing districts for the election of members of the United States House of
Representatives (the "House") was challenged.
Synopsis of Rule of Law. Cases involving political gerrymander are non-justiciable
because "[no provision in the Constitution] … provides a judicially enforceable limit on
the political considerations that the States and Congress may take into account when
districting…"
Facts. The Plaintiff-appellants in this matter, Richard Vieth, Norma Jean Vieth and
Susan Furey (the "Plaintiff-appellants"), challenged a map drawn by the Pennslyvania
General Assembly establishing districts for the election of member of the House. The
Plaintiff-appellants argued that the districting constitutes an unconstitutional political
gerrymander.
Issue. Was the Supreme Courts prior decision in [Davis v. Bandemer, 478 U.S. 109
(1986)], in error?
1 • If not, what is the appropriate standard?
Held. Yes. Justice Antonin Scalia ("J. Scalia") writing for the majority first observed that
[Davis v. Bandemer] held that political gerrymandering claims were justiciable, but did
not agree to a standard to adjudicate them. J. Scalia set forth a portion of the Supreme
Court of the United States' ("Supreme Court") holding in [Bandamer]. The Supreme
Court in [Bandamer] stated it was "not persuaded that there are no judicially discernible
and manageable standards by which political gerrymander cases are to be decided." Thus,
the cases were justiciable. J. Scalia then observed "no judicially discernible and
manageable standards for adjudicating political gerrymandering claims have emerged.
Lacking them, we must conclude that political gerrymandering claims are nonjusticiable
and that [Bandamer] was wrongly decided."
1 • There is no "constitutionally discernable standard." J. Scalia first criticizes
Justice Powell's proposed fairness standard from [Bandamer] and argued it
was not a judicially manageable standard. Second, he criticizes the dissenting
judges proposed standards and observes "the mere fact that these four
dissenters come up with three different standards--all of them different from
the two proposed in [Bandamer] and the one proposed here by appellants--
goes a long way to establishing that there is no constitutionally discernible
standard."
32 Vieth v. Jubelier
Dissent. Justice John Paul Stevens ("J. Stevens") filed a dissenting opinion. He stated, "it
would be contrary to precedent and profoundly unwise to foreclose all judicial review of
similar [apportionment] claims that might be advanced in the future." Also, that there are
a variety of standards that courts could apply to identify "impermissible partisan
influence." Those include, "Justice Powell's three-factor approach in [Bandemer]", "the
predominant motivation standard fashioned by the Court in its racial gerrymandering
cases" or the approaches from either Justice David Souter's ("J. Souter") or Justice
William Breyer's ("J. Breyer") dissenting opinions.
1 • J. Souter entered an opinion advocating a "fresh start" and a five-part test.
He confronted head on J. Scalia's and the pluralities criticism of his opinion
that "[i]t does not solve [the] problem [of determining when gerrymandering
has gone too far] to break down the original unanswerable question ... into
four more discrete but equally unanswerable questions." In response to the
criticisms, J. Souter observed, "[i]t is common sense, however, to break down
a large and intractable issue into discrete fragments as a way to get a handle
on the larger one, and the elements I propose are not only tractable in theory,
but the very subjects that judges already deal with in practice."
Concurrence. Justice Anthony Kennedy ("J. Kennedy") filed an opinion concurring in

the judgment. However, he would "not foreclose all possibility of judicial relief if some
limited and precise rationale were found to correct an established violation of the
Constitution in some redistricting cases." Further, "[i]t is not in our tradition to foreclose
the judicial process from the attempt to define standards and remedies where it is alleged
that a constitutional right is burdened or denied." Also, "[t]hat no such standard has
emerged in this case should not be taken to prove that none will emerge in the future.
Where important rights are involved, the impossibility of full analytical satisfaction is
reason to err on the side of caution. Allegations of unconstitutional bias in apportionment
are most serious claims, for we have long believed that "the right to vote" is one of "those
political processes ordinarily to be relied upon to protect minorities."
Discussion. In is interesting to observe how the various judges attempt to arrive at a
manageable standard. Also, J. Scalia's observation that "[w]hile we do not lightly
overturn one of our own holdings, when governing decisions are unworkable or are badly
reasoned, 'this court has never felt constrained to follow precedent.' "
33 Powell v. McCormack
Powell v. McCormack
Citation. 395 U.S. 486 (1969).
Brief Fact Summary. After being elected to the House of Representatives (the House),
the House denied membership to the Plaintiff-Petitioner, Powell (Plaintiff). Plaintiff now
sues for installment as a representative.
Synopsis of Rule of Law. The "textual commitment" to a constitutional provision by a
political branch is justiciable.
Facts. During the 89th Congress, it was found that Plaintiff had engaged in deceptive and
possibly illegal actions surrounding his service as chairman of the Committee on
Education and Labor. After his reelection to the 90th Congress, he was asked to step
aside while the other representatives were sworn in. Also, he was later asked to inform
the Governor of New York that his seat was vacant. Plaintiff sued, alleging the House did
not have the constitutional authority to deny his seat when he met the qualifications
expressly set forth for Representatives in Article I of the United States Constitution
(Constitution).
Issue. Does the House have a textual commitment in the constitution to determine the
qualifications of its members?
Held. Yes. Case reversed and remanded.
1 • The Defendants-Respondents, members of Congress including the
Speaker of the House John W. McCormack (Defendants), argued that the
House has broad powers under Article I, § 5 of the Constitution to
determine the qualifications of its membership. Plaintiff argued and the
Supreme Court of the United States (Supreme Court) agreed, the
ratification debates and historical context of the framers limit the
qualifications to those set forth in the Constitution.
2 • The Supreme Court also notes that to hold otherwise would nullify the
framers' decision to require two-thirds vote for expulsion.
Discussion. There is actually one independent and one dependent issue in Powell. First,
what power the Constitution confers on the House. In other words, is there a textually
dependent commitment? Second, how to interpret the text on which such commitment
depends. A textually dependent commitment is necessary for judicial review (i.e., the
Supreme Court is the ultimate interpreter of the constitution). Once this is established, the
Supreme Court must interpret the textual meaning. In Powell, it is clear and conceded
that Powell met the requirements specifically mentioned in Article I regarding
qualifications of representatives.
34 Goldwater v. Carter
Goldwater v. Carter
Citation. 444 U.S. 996 (1979).
Brief Fact Summary. The Defendant, United States President Jimmy Carter
(Defendant), rescinded a treaty with Taiwan as part of recognizing the People's Republic
of China. The Plaintiff, United States Senator Barry Goldwater (Plaintiff), sued, alleging
that the Senate must rescind treaties.
Synopsis of Rule of Law. Questions of a purely political nature are nonjusticiable.
Facts. While recognizing the People's Republic of China, the Defendant rescinded the
United States treaty with Taiwan. Plaintiff sued, arguing that as the Senate must ratify
treaties, the Senate's approval is also required to rescind treaties.
Issue. Is the present case justiciable?
Held. No. Case reversed and remanded for dismissal. There is no majority opinion.
Dissent. Justice William Brennan (J. Brennan), concurring in judgment, dissents. He
argues that the case is not ripe, as there has not yet been Congressional action, but argues
that if there were, this is not a nonjusticiable political question as defined in Baker v.
Carr, 369 U.S. 186 (1962).
Concurrence. Justice William Rehnquist (J. Rehnquist), concurring, views the case as
entirely political, and therefore nonjusticiable. In particular, the constitution is silent as to
the rescinding of treaties. The fact that different termination standards may be proper for
different treaties, the matter should be left to the political branches.
1 • Justice Lewis Powell (J. Powell), concurring, views the case as not ripe
for review. Specifically, as the Senate has not yet taken official action, the
political branches are not yet at a constitutional impasse.
Discussion. In the absence of a majority opinion, Goldwater v. Carter represents both the
United States Supreme Court's (Supreme Court) political question jurisprudence and
ripeness law.
35 Nixon v. United States
Nixon v. United States
Citation. 506 U.S. 224 (1993).
Brief Fact Summary. The Petitioner, Nixon (Petitioner), a former federal judge, asks the
Supreme Court of the United States (Supreme Court) to decide whether Senate Rule XI,
as applied in his impeachment trial, is constitutional.
Synopsis of Rule of Law. Impeachment trials are nonjusticiable.
Facts. The Petitioner, a former Chief Judge of the United States District Court for the
Southern District of Mississippi, was sentenced to prison for lying under oath to a federal
grand jury. The Petitioner refused to resign from his post and continued to draw his salary
while incarcerated. In the ensuing impeachment trial, the Senate invoked Rule XI, which
allowed a Senate committee to receive evidence and testimony. The committee provided
full transcripts and summaries to the entire Senate and more than the necessary two-thirds
voted to impeach on two of the three articles. Nixon now appeals, arguing that Rule XI
violates the impeachment trial clause, Art. I § 3, cl. 6 of the United States Constitution
(Constitution).
Issue. Does Petitioner have the right to have the entire Senate receive evidence and
testimony?
Held. No, impeachment trials are nonjusticiable.
1 • The impeachment trial clause of the Constitution states, "The Senate
shall have the sole Power to try all Impeachments…" The majority argues
this provision gives the Senate the sole discretion to determine the
appropriate manner of trial as well.
2 • The majority further argues that impeachment is the only check on the
Judicial Branch by the legislature. As such, judicial oversight would be
counter to the Framers' system of checks and balances.
Concurrence. Justice Byron White (J. White), concurring, found that there is no
prohibition to the judicial review of impeachment trials. He also found that the Petitioner
was "tried" by the Senate and the Senate fulfilled its constitutional duty in so doing.
1 • Justice David Souter (J. Souter), concurring in judgment, believes the
case at bar is nonjusticiable, but that there are times when a Senate
impeachment trial is reviewable (e.g., trial by coin toss, someone just
being "a bad guy," or the Senate acting beyond its constitutional authority,
etc.).
Discussion. The majority draws a bright line by concluding impeachment trials are
nonjusticiable. The arguments presented focus on checks and balances and separation of
36 Nixon v. United States
powers, but much is also made of the inclusion of the word "sole" in the impeachment
trial clause.
37
CHAPTE
R II. The
Federal
Legislativ
e Power
38 McCulloch v. Maryland
McCulloch v. Maryland
Citation. 17 U.S. (4 Wheat.) 312 (1819).
Brief Fact Summary. The State of Maryland sued the Maryland branch of the Bank of
the United States for non-payment of state taxes levied against it.
Synopsis of Rule of Law. The United States Constitution (Constitution) is the supreme
law of the United States and state law must defer to it.
Facts. The Bank of the United States was a controversial entity in the early years of the
country. The State of Maryland, unhappy with the Bank, attempted to levy a crippling tax
on the Maryland branch of the Bank. When the Bank's cashier, McCulloch, refused to
pay the tax, the state sued for payment.
Issue. May state action dismantle a federal institution?
1 • The Constitution is ratified by the People, and hence emanates its
authority from the People, not the states. As such, it is the supreme law of
the United States.
2 • The government of the Union is one of limited and enumerated powers.
However, the constitution is not one of exhaustive powers. To enumerate
all powers delegated to the Union "would partake of the prolixity of a
legal code." Only the "great outlines" of these powers should be
delineated.
3 • "Let the end be legitimate, let it be within the scope of the constitution,
and all means which are appropriate, which are plainly adapted to that end,
which are not prohibited, but consist with the letter and spirit of the
constitution, are constitutional."
4 • "[A] power to create implies a power to preserve… [A] power to destroy,
if wielded by a different hand, is hostile to and incompatible with these
powers to create and preserve… [W]here this repugnancy exists, that
authority which is supreme must control, not yield to that over which it is
supreme."
Discussion. McCulloch v. Maryland is the most important case defining the relationship
between the Union and the states. It also offers a concise definition of the legislative
power of Congress and judicial review of legislative acts ("Let the end be legitimate…").
39 Gibbons v. Ogden
Gibbons v. Ogden
Citation. 22 U.S. (9 Wheat.) 1 (1824).
Brief Fact Summary. The State of New York had issued an exclusive license to operate
steamboats in New York waters to Fulton and Livingston. Their licensee and the Plaintiff
- Respondent, Ogden (Plaintiff), sued the Defendant - Appellant, Gibbons (Defendant),
for operating a competing ferry service.
Synopsis of Rule of Law. The commerce power is a broad regulatory power.
Facts. New York issued an exclusive steamboat license to Robert Fulton and Robert
Livingston, who licensed Plaintiff to operate a ferry service between New York City and
Elizabethtown Port, New Jersey. When Defendant began operating a competing ferry
service, Plaintiff sued. Defendant argued that because his ferry was licensed under federal
law as "vessels in the coasting trade," he had the right to operate his ferry, as well.
Issue. Is the scope of Congress' power under the Commerce Clause narrow in scope?
1 • Plaintiff argued that Congressional power under the Commerce Clause is
limited to traffic: buying and selling, interchange of goods, but not to
navigation.
2 • However, were Congress unable to regulate navigation, the foreign
commerce power would be effectively nullified (every state deserves the
opportunity to trade with foreign countries, even those that are inland).
Extending this argument, Congress should also have the ability to govern
navigation between states and even into states, as long as the commerce is
not entirely intrastate.
Discussion. Gibbons v. Ogden is the first case addressing the scope of the Commerce
Clause. Chief Justice John Marshall lays (J. Marshall) the foundation for future
Commerce Clause cases by broadly interpreting Congress' power under the clause.
40 United States v. E. C. Knight Co.
United States v. E. C. Knight Co.
Citation. 156 U.S. 1 (1895).
Brief Fact Summary. American Sugar Refining Company (American) purchased four
refineries in Philadelphia, effectively monopolizing sugar refining in the United States.
The company was subsequently sued by the federal government for engaging in
combinations in restraint of trade.
Synopsis of Rule of Law. Exercise of the Commerce Power may not destroy the police
power retained by the states.
Facts. The Appellee-Defendants, E.C. Knight Co., American and other sugar refineries
(Defendants), entered into contracts to purchase four refineries in Philadelphia, thereby
controlling almost the entire refined sugar manufacture in the United States. The
government alleged that by entering into the contracts, the Defendants combined and
conspired to restrain the trade and commerce in refined sugar among the several states
and with foreign nations, contrary to an act of Congress promulgated on July 2, 1890.
Issue. Does the act of Congress overstep the authority given by the Commerce Clause?
Held. Yes. Appeals court judgment affirmed. The majority draws a distinction between
the manufacture of a good and its final disposition. The Supreme Court of the United
States (Supreme Court) also says that a good's use in commerce is only incidental to its
manufacture, and as such, the act overreached the power of Congress under the
Commerce Clause.
Dissent. Justice John Marshall Harlan (J. Harlan), dissenting, argues that if Congress has
the ability to regulate interstate commerce, it must also have the ability to remove
restraints on interstate commerce.
Discussion. The somewhat dubious distinction between manufacture and activities in
commerce is characteristic of the narrow view of the commerce power taken by the
Supreme Court between 1890 and 1937.
41 Carter v. Carter Coal Co.
Carter v. Carter Coal Co.
Citation. 298 U.S. 238 (1936).
Brief Fact Summary. Respondent challenges the constitutionality of the Bituminous
Coal Conservation Act of 1935 (the Act).
Synopsis of Rule of Law. "Commerce" is the equivalent of "intercourse for the purposes
of trade."
Facts. The Act sought to stabilize the bituminous coal mining industry and promote its
interstate commerce. Among other provisions, the Act called for collective bargaining
among the employees of the industry, minimum and maximum price controls, and
defined various unfair trade practices.
Issue. Does the Act overreach Congressional authority under the Commerce Clause?
Held. Yes. Judgment affirmed.
1 • The Supreme Court of the United States (Supreme Court) notes that
commerce includes transportation, purchase, sale, and exchange of
commodities. By that definition, the Act seeks to control certain activities
that are not "commerce."
2 • Furthermore, the Act also affects intrastate commerce to a large degree.
The same regulations aimed at interstate commerce also affect coal
produced and sold in the same state.
Discussion. Carter overturned a key piece of New Deal legislation. The case is another
example of the narrow construction of the Commerce Clause before 1937.
42 Houston, East & West Railway Company v. United States
Houston, East & West Railway Company v. United States
Citation. 234 U.S. 342 (1914).
Brief Fact Summary. The government brought suit against railway companies in Texas,
who were maintaining vastly different rate structures for shipments from Shreveport than
from similar points within Texas.
Synopsis of Rule of Law. Congress may affect intrastate commerce, where the
transactions of intrastate and interstate commerce are so related that the preservation of
interstate commerce must involve intrastate instrumentalities as well.
Facts. Shreveport, Louisiana lies just east of the border with Texas. Railways in Texas
were charging much more for shipment of goods westward into Texas than they were
charging for a shipment from Dallas and Houston eastward. The Interstate Commerce
Commission brought suit, alleging that the rate differences negatively impacted interstate
commerce.
Issue. May the federal government regulate carriers engaged in intrastate commerce
where the same carriers engage in interstate commerce?
Held. Yes. Court of appeals ruling affirmed.
1 • The Supreme Court of the United States (Supreme Court) argues that
where a carrier is involved in intrastate and interstate traffic, the Congress
may regulate the interstate commerce in which the carrier engages.
2 • The Supreme Court also argues that Congress may regulate the intrastate
commerce of those carriers when the intrastate actions act as a hindrance
to interstate commerce.
Discussion. This holding seems somewhat inconsistent with the holdings in Carter Coal,
298 U.S. 238 (1936) and A.L.A. Schechter Poultry, 295 U.S. 495 (1935), but illustrates
the generally inconsistent conceptualization of the Commerce Clause during this period.
43 A.L.A. Schechter Poultry Corporation v. United States
A.L.A. Schechter Poultry Corporation v. United States
Citation. 295 U.S. 495 (1935).
Brief Fact Summary. The Defendant, A.L.A. Schechter Poultry Corporation
(Defendant), a slaughterhouse in New York City, was sued under the "Live Poultry
Code," which regulated the poultry industry by requiring collective bargaining, a 40 hour
work week, and a minimum wage, among other provisions.
Synopsis of Rule of Law. The Commerce Power ceases where the currents of interstate
commerce stop.
Facts. New York City was the largest live poultry market in the United States. Ninety-six
percent of the live poultry in New York comes from other states. Independent contractors
generally unload the poultry in Manhattan or one of the four railway terminals in New
Jersey that serve New York City. Defendant's, slaughterhouse operators, bought poultry
from the contractors in New York City and processed the birds in Brooklyn. The
processed birds were sold directly to retailers in New York State. Defendant does not sell
poultry interstate.
Issue. Does the Commerce Clause give Congress the power to regulate the Defendant's
business?
Held. No. Judgment reversed and remanded. The United States Supreme Court (Supreme
Court) conceded the poultry is shipped interstate. However, as the Defendant corporation
buys the poultry in state and sells the poultry in state for in state consumption, the
corporation is not involved in interstate commerce. Therefore, the Commerce Clause
does not give Congress the power to regulate the corporations.
Discussion. The Supreme Court makes a strong distinction between the fact that 96% of
the poultry coming into New York City was from out of state and the fact that the
Defendant corporation bought and sold to in state entities. However, this distinction
becomes less important in the Commerce Clause jurisprudence after 1937.
44 Hammer v. Dagenhart
Hammer v. Dagenhart
Citation. 247 U.S. 251 (1918).
Brief Fact Summary. A father brought a suit on behalf of his two minor sons, seeking to
enjoin enforcement of an act of Congress intended to prevent the interstate shipment of
goods produced with child labor.
Synopsis of Rule of Law. Congress' power under the Commerce Clause cannot
undermine the police power left to the States by the Tenth Amendment of the United
States Constitution (Constitution).
Facts. Congress passed a law which would prohibit the interstate transportation of
manufactured goods produced by a factory, which within thirty days prior had allowed
children under age 14 to work or children between the ages of 14 and 16 to work for
more than a specified workload. The father of two employed, minor sons - one under 14,
and one between 14 and 16 - brought suit as next friend to his sons, seeking to enjoin
enforcement of the law as exceeding Congress' authority under the Commerce Clause.
Issue. Can Congress control interstate transport in a manner that strongly impinges on the
manufacture of goods?
Held. No.
1 • The Supreme Court of the United States (Supreme Court) first notes that
interstate commerce can necessarily not begin with manufacture.
Manufactured goods may be made solely for in state use. It is only with
the transportation of the goods that the interstate commerce power begins.
To say otherwise would give Congress power to control all manufacture in
all states.
2 • The Supreme Court argues that the Tenth Amendment of the
Constitution reserves local police authority to the States. To allow
Congress to exercise power over local manufacture, would effectively
remove that authority which the amendment relegates to local authorities.
Dissent. Justice Oliver Wendell Holmes (J. Holmes) dissenting.

1 • It is largely indisputable that, if considered only for its immediate
effects, the act in question is within Congress' power to regulate interstate
commerce.
2 • As far as secondary effects, the States are still free to regulate
manufacture as they please. However, when a State begins to ship
manufactured goods across state lines, they are subjecting themselves to
the control of Congress. No direct regulation of the States has occurred. J.
Holmes notes, "[I]f an act is within the powers specifically conferred upon
Congress, it
45 Hammer v. Dagenhart
1 seems to me it is not made any less constitutional because of the indirect
effects that it may have, however obvious it may be that it will have those
effects, and that we are not at liberty upon such grounds to hold it void.
Discussion. The dissent's argument clearly undermines the majority view, and later
Commerce Clause cases are in line with the dissent.
46 Champion v. Ames
Champion v. Ames
Citation. 188 U.S. 321 (1903).
Brief Fact Summary. Appellant is an express carrier challenging the constitutionality of
an act of Congress prohibiting the carriage of lottery tickets across state lines.
Synopsis of Rule of Law. Congress has the ability to regulate transport of goods in
interstate commerce when such regulation does not affect the internal affairs of the states.
Facts. Defendant was indicted under an 1895 act criminalizing the interstate shipment of
lottery tickets and similar instruments. Defendant argues that the act overreaches
Congress's commerce powers, as the mere transport of the tickets is not interstate
commerce.
Issue. May Congress regulate shipment of lottery tickets from one state to another?
Held. Yes. Appeals court judgment affirmed. Congress is not prohibiting the sale of
lottery tickets, only their shipment across state lines.
Discussion. The Supreme Court of the United States' decision in Champion v. Ames
would appear to be at odds with the majority opinion in Hammer v. Dagenhart, 247 U.S.
251 (1918). Note that the statute criminalizes the shipment of lottery tickets, not the
carrying of parcels in general. The majority in Hammer ruled that this is not regulating
interstate transport but Congress' attempt to regulate an intrastate activity (in Hammer,
the Supreme Court ruled that prohibiting the interstate transport of products of child labor
is not regulating interstate commerce per se). A cynical (or practical) view would explain
the difference between the holdings by saying the morally conservative Supreme Court
had no problem extending the commerce power to quash gambling but could not extend it
to injure the cause of big business.
47 National Labor Relations Board v. Jones & Laughlin Steel Corp.
National Labor Relations Board v. Jones & Laughlin Steel Corp.
Citation. 301 U.S. 1 (1937).
Brief Fact Summary. The National Labor Relations Board ("N.L.R.B.") brought suit
against the Defendant, Jones & Laughlin (Defendant), for engaging in unfair labor
practices, specifically, the discharge of certain employees based on union affiliation.
Synopsis of Rule of Law. Congress' power to regulate commerce is plenary, in the sense
that intrastate activities that affect interstate commerce are within the purview of the
commerce power.
Facts. Defendant was the fourth largest producer of Steel in the United States. It was a
conglomerate owning ore, coal, and limestone properties, railways and steam barges,
refineries, and warehouses. Its operations spread across several states. The suit brought
by the N.L.R.B. proceeds under the National Labor Relations Act of 1935 (Act), alleging
that Defendant discriminated against union members with regard to hire and tenure and
was coercing and interfering with its own employees' ability to self-organize.
Issue. May Congress regulate the practices under which goods involved in interstate
commerce are produced?
1 • If intrastate activities have a "close and substantial relation to interstate
commerce," Congress has the explicit power to control them insofar as
they affect interstate commerce. In particular, the Supreme Court of the
United States (Supreme Court) notes that Defendant's activities are so
"far-flung" that any deleterious action in its local operations would have a
direct and immediate effect on interstate commerce.
2 • Defendant's denial of its employees' right to self-organize is an imminent
cause of labor strife, and thus could affect interstate commerce. As such,
Congress is within its powers to regulate the employees' ability to self-
organize.
Dissent. Justice James McReynolds (J. McReynolds), dissenting, argued that stare decisis
required that pure manufacture be outside the powers of Congress to regulate interstate
commerce.
Discussion. This case is the first in long line of cases representing an expanding
commerce power for the United States Congress that continues into the 1990s. According
to the majority, almost any activity that affects interstate commerce is open to
Congressional regulation.
48 United States v. Darby
United States v. Darby
Citation. 312 U.S. 100 (1941).
Brief Fact Summary. The Defendant-Respondent, Darby (Defendant), was indicted
under the Fair Labor Standards Act (the Act) for violating minimum wage and maximum
hours limitations. The Respondent now argues the standards promulgated under the Act
are an unconstitutional exercise of the commerce power.
Synopsis of Rule of Law. Congress may regulate intrastate activities so long as there is a
connection between such activities and interstate commerce. Also, the Tenth Amendment
"states but a truism."
Facts. The Defendant was engaged in the lumber business in Georgia. The Defendants
mills produced a large proportion of lumber that was shipped to other states. Defendant
was indicted for violating the standards developed in the Act, including minimum wage
and maximum hours in a workweek.
Issue. May Congress prohibit the employment of workers producing goods for interstate
commerce at other than statutory set wages and hours?
Held. Yes. Appeals court ruling reversed and remanded.
1 • Hammer v. Dagenhart, 247 U.S. 251 (1918) is specifically overruled as a
"departure from the principles which have prevailed in the interpretation
of the commerce clause…"
2 • Exercise of Congressional regulation over intrastate activities is an
appropriate means to the legitimate end of regulating interstate commerce.
3 • "The [Tenth A]mendment states but a truism that all is retained which
has not been surrendered." The Supreme Court of the United States
(Supreme Court) states a view of the Tenth Amendment of the United
States Constitution (Constitution) that held firm for most of the 20th
century: that the Amendment sought to codify concerns the Constitution
had already addressed.
Discussion. United States v. Darby represents the overturn of the narrow construction of
the Commerce Clause. Apart from establishing as constitutional labor regulations that
continue to the present day, United States v. Darby reinforces the view of the commerce
power as a plenary grant of power to Congress.
49 Wickard v. Filburn
Wickard v. Filburn
Citation. 317 U.S. 111 (1942).
Brief Fact Summary. The Appellee, Filburn (Appellee), produced wheat only for
personal and local consumption. He was penalized for growing wheat in excess of his
allotment allowed by the Department of Agriculture.
Synopsis of Rule of Law. Congress may regulate the activities of entities totally apart
from interstate commerce, if those activities affect interstate commerce.
Facts. Appellee was an owner/operator of a small farm in Ohio. He sold milk, poultry,
and eggs. He also grew a small crop of winter wheat every year. Appellee sold a portion
of the wheat, used some as feed for poultry and livestock, used some to make flour for
home consumption, and the kept the rest for the following seeding. Pursuant to the
Agricultural Adjustment Act of 1938 (Act), the Appellee's 1941 wheat allotment was
11.1 acres and a normal yield of 20.1 bushels per acre. In the Fall of 1940, however, he
planted 23 acres, which yielded 239 bushels from his excess acreage. He was assessed
penalties on this amount of 49 cents a bushel, or $117.11.
Issue. May Congress regulate purely intrastate activities under the commerce clause?
Held. Yes. Appeals court ruling reversed and remanded.
1 • Although the wheat may be entirely for personal consumption, it does
compete for wheat in commerce, by taking away the demand for wheat by
the one who grows it. As the one growing the wheat does not have to buy
wheat, the demand for wheat goes down. When viewed in the aggregate (if
everyone overgrew wheat "for personal consumption"), this decrease in
demand would have a significant effect on interstate commerce.
2 • The Supreme Court of the United States (Supreme Court) acknowledges
that the effect of the single farmer may well be negligible to interstate
commerce, but when viewed in the aggregate of all farmers "similarly
situated" it may significantly affect the value of wheat in commerce.
Discussion. Wickard v. Filburn is in some ways the greatest exercise of the commerce
power recognized by the Supreme Court. Note that the Supreme Court seems to say
Congress can compel an individual to purchase wheat when the individual could grow
wheat for personal consumption.
50 Heart of Atlanta Motel, Inc. v. United States
Heart of Atlanta Motel, Inc. v. United States
Citation. 379 U.S. 241 (1964).
Brief Fact Summary. Prior to passage of the Civil Rights Act of 1964 (the Act), the
Appellant, Heart Atlanta Motel, Inc. (Appellant) operated a motel which refused
accommodations to blacks. Appellant intended to continue this behavior to challenge
Congress' authority to pass the Act.
Synopsis of Rule of Law. Congress may regulate the ability of commercial institutions to
deny service on the basis of race under its power to regulate interstate commerce.
Facts. Heart of Atlanta Motel had 216 rooms available to transient guests and had
historically rented rooms only to white guests. Appellant solicits business from outside
the State of Georgia through advertising in national travel magazines and other media.
Approximately 70% of its guests are from outside the state. Appellant contends that
Congress has overreached its authority under the Commerce Clause in enacting the Act.
Issue. May Congress prohibit racial discrimination in hotel lodging under the Commerce
Clause?
Held. Yes. Appeals court ruling affirmed.
1 • Congress heard testimony from many sources describing the hardships
blacks face in securing transient accommodations throughout the United
States. With an increasingly mobile populace, this brought increasing
difficulties to many United States citizens.
2 • It does not matter that Congress was addressing a moral issue (see the
dissent in Hammer v. Dagenhart, 247 U.S. 251 (1918) and the Supreme
Court of the United States' (Supreme Court) opinion in Darby, 312 U.S.
100 (1941). What the Supreme Court is examining is Congress' power to
enact the legislation, not the impetus behind the Act.
Concurrence. Justice William Douglas (J. Douglas) concurs in the judgment, but he is
uneasy resting the decision on the Commerce Clause, rather than § 5 of the Fourteenth
Amendment of the United States Constitution (Constitution). He feels that it is more
appropriate to rest civil rights legislation on the constitutional status of the individual,
than the impact on commerce.
Discussion. The first of the modern civil rights cases before the Supreme Court, Heart of
Atlanta Motel, illustrates the plenary nature with which the Supreme Court had vested the
commerce power. The view expressed by J. Douglas was eschewed by the majority,
largely because in The Civil Rights Cases, 109 U.S. 3 (1883), the Supreme Court had
ruled that § 5 of the Fourteenth Amendment of the Constitution could not regulate private
behavior.
51 Katzenbach v. McClung, Sr. and McClung, Jr.
Katzenbach v. McClung, Sr. and McClung, Jr.
Citation. 379 U.S. 294 (1964).
Brief Fact Summary. Ollie's Barbecue, a family-run business in Alabama did not serve
blacks in the restaurant, which was in violation of Title II of the Civil Rights Act of 1964
(the Act).
Synopsis of Rule of Law. Congress has the ability to require desegregation of restaurants
under the Commerce Clause.
Facts. Ollie's Barbecue served barbecued meats and homemade pies from its location in
Birmingham, Alabama. Before and after passage of the Act, the restaurant had only
served black patrons on a carry-out basis. Approximately 50% of its food was purchased
from a local supplier who procured it from out of state. Because of the local nature of its
operations, the Appellees, Ollie McClung Jr. and Sr. (Appellees), argues that Congress
has overstepped its powers under the Commerce Clause.
Issue. May Congress regulate racial discrimination by locally owned and operated
restaurants?
Held. Yes. Appeals court ruling reversed and remanded. Many of the issues in the case
had been answered in Heart of Atlanta Motel, 379 U.S. 241 (1964). The largest remaining
question was whether the Appellees' establishment serves interstate travelers or offers
food that a substantial portion of which has moved in interstate commerce. Because
Appellees admitted the latter query was true, the Supreme Court of the United States
(Supreme Court) ruled that Congress had authority to regulate the restaurant under the
Commerce Clause.
Discussion. Katzenbach v. McClung was decided on the same day as Heart of Atlanta
Motel and represented the desegregation efforts by the Supreme Court. Again, it is
notable that the Supreme Court ruled that Congress' authority extended from the
Commerce Clause.
52 National League of Cities v. Usery
National League of Cities v. Usery
Citation. 426 U.S. 833 (1976).
Brief Fact Summary. The Appellants, National League of Cities (Appellants), brought
suit challenging the constitutionality of the 1974 amendments to the Fair Labor Standards
Act (the Act), specifically the requirement that state governments pay their employees the
new minimum wage and overtime.
Synopsis of Rule of Law. The Tenth Amendment of the United States Constitution
(Constitution) acts to preserve the States' sovereign authority and limit the Congress'
power to compel State actions.
Facts. In 1974, Congress amended the Act to, among other things, apply the Act's
provisions to public employers. Appellants allege that the requirements of the
amendments will greatly increase the cost of operating state governments to the extent
that the governments will require greater income or provide decreased public services.
Appellants also argue that Congress has intruded upon powers left to the States in so
amending the Act.
Issue. May Congress regulate the employment practices of state governments?
Held. No. Reversed and remanded. Justice William Rehnquist (J. Rehnquist) states that
the Act would require states to substantially restructure traditional ways in which they
have operated. He argues that this is a power reserved to the States and that to force
States to comply with Congress' view of how they should operate their traditional affairs
destroys the States' separate and independent existences.
Dissent. Justice William Brennan (J. Brennan) believes that the United States Supreme
Court (Supreme Court) has erred in saying that the Constitution refers to the states'
sovereignty acting as a restraint on Congress' commerce power and the political process
allows the states to deal with such issues.
1 • Justice John Paul Stevens (J. Stevens) notes that the federal government
may require the states to obey a vast number of regulations, in the midst of
which a state's right to pay employees a substandard wage is difficult to
discern.
Concurrence. Justice Harry Blackmun (J. Blackmun) does not see the ruling in this case
as outlawing federal power in forcing states to comply with environmental regulations
and other such areas where the "federal interest is demonstrably greater."
Discussion. National League of Cities v. Usery is the first attempt by the modern
Supreme Court to establish a jurisprudence of state sovereignty based on the text of the
Tenth Amendment of the Constitution.
53 Garcia v. San Antonio Metropolitan Transit Authority
Garcia v. San Antonio Metropolitan Transit Authority
Citation. 469 U.S. 528 (1985).
Brief Fact Summary. The Appellant, Garcia (Appellant), brought suit against his
employer the San Antonio Metropolitan Transit Authority (Appellee), arguing that its
function as a transit authority was a "non-traditional" function of state government. Thus,
it was bound by the standards of the Fair Labor Standards Act ("FLSA").
Synopsis of Rule of Law. The division between Congressional regulatory power under
the commerce clause and state sovereignty is defined by political action, not judicial
review.
Facts. Much litigation was spawned after the National League of Cities v. Usery, 426
U.S. 833 (1976) decision. That decision determined whether certain state employers
represented "traditional" state functions not bound by the FLSA or non-traditional
functions operating outside the state's sovereign authority. Appellant argued that as a
transit employee, his employer fit into the latter category and was thus bound by the
FLSA.
Issue. What is the scope of state immunity under the Commerce Clause?
Held. None. Reversed and Remanded.
1 • The Supreme Court of the United States (Supreme Court) holds that the
determination of traditional and non-traditional state functions is an
inappropriate standard for determining whether Congress may enforce the
FLSA against a public employer.
2 • The Supreme Court removes the standard by overturning National
League of Cities and leaving any decisions regarding Congressional
control of state actions to the political process.
Dissent. Justice Lewis Powell (J. Powell) attacks the decision on two grounds: (1) stare
decisis - it has been only 8 years since National League of Cities and (2) that the political
process is insufficient in itself to maintain the federalist structure of government.
1 • Justice William Rehnquist (J. Rehnquist) joins both dissents and adds, "I
am confident [that state sovereign restraints on the commerce power will],
in time again command the support of a majority of this Court."
2 • Justice Sandra Day O'Connor (J. O'Connor) dissents on the ground that
"state autonomy is a relevant factor in assessing the means by which
Congress exercises its powers."
54 Garcia v. San Antonio Metropolitan Transit Authority
Discussion. Garcia v. San Antonio Metropolitan Transit Authority acts primarily to
invalidate National League of Cities. and illustrates the passion different Justices feel
toward the issues of state sovereignty and the commerce power.
55 United States v. Lopez
Case: United States v. Lopez Citation. 514 U.S. 549 (1995).
Brief Fact Summary. The Defendant, Lopez (Defendant), a high school senior, was
indicted under the federal Gun-Free School Zones Act of 1990 (the Act). The Act
prohibited knowing possession of a firearm at a place the individual has reasonable cause
to believe is a school zone.
Synopsis of Rule of Law. Mere possession of a firearm does not have enough of a
connection to interstate commerce to support prohibition under the commerce power.
Facts. Defendant was arrested under Texas state law for bringing a .38 caliber handgun
to school. The next day, state charges were dropped, and Defendant was indicted under
the Act. Defendant challenged the law as an unconstitutional exercise of the commerce
power.
Issue. May Congress prohibit mere possession of a firearm in a designated space under
the Commerce Clause?
1 • Chief Justice William Rehnquist (J. Rehnquist) notes three broad
categories of activity that Congress may regulate under the commerce
power: (1) the channels of interstate commerce; (2) the instrumentalities of
interstate commerce (people or things in interstate commerce) and (3)
those activities having a substantial relation to interstate commerce.
2 • The Court argues that in the final category, an activity must
"substantially affect" interstate commerce in order to be within the
Congress' power under the Commerce Clause. It is not clear by the text or
by the legislative history of the statute that possessing a gun in a school
zone has a substantial effect on interstate commerce.
Dissent. Justice John Paul Stevens (J. Stevens) argues that the vital importance of
education to commerce among the states and with foreign nations justifies the use of the
commerce power to secure the educational environment.
1 • Justice David Souter (J. Souter) argues two main points: (1) that if there
is any rational basis for claiming an activity involves interstate commerce,
the only judicial inquiry is whether the means are plainly adapted to the
end and (2) that the Court's decision returns Commerce Clause
jurisprudence to the state it was in at the beginning of the century.
Concurrence. Justice Anthony Kennedy (J. Kennedy) concurs, but with reservations. He
acknowledges that the importance of Commerce Clause jurisprudence and maintains that
56 United States v. Lopez
a stable landscape is necessary for the federal court system in general. However, he
agrees there is not a significant commercial nexus in the purpose or design of the statute.
1 • Justice Clarence Thomas (J. Thomas) concurs, but believes the Supreme
Court should develop a new standard of review that better reflects the text
and history of the Commerce Clause.
Discussion. United States v. Lopez is a radical departure from the Commerce Clause
cases from 1937 until 1995. Notably, the majority attempts to reincorporate the
Commerce Clause jurisprudence from the early 20th century with the following cases, as
Souter, dissenting, bemoans. In his concurrence, Kennedy hints at another hidden fear: if
the Commerce Clause jurisprudence is being redefined, what does this say about the
modern civil rights cases (which were all decided under the Commerce Clause)?
57 United States v. Morrison
United States v. Morrison
Citation. 120 S. Ct. 1740 (2000).
Brief Fact Summary. The Respondent, Morrison (Respondent), was sued under part of
the Violence Against Women Act of 1994 (Act), which penalized crimes of violence
motivated by gender. Now Respondent argues this section of the Act is beyond the scope
of Congress' power to regulate commerce.
Synopsis of Rule of Law. Intrastate actions must be economic in nature to be viewed in
aggregate by courts reviewing a Commerce Clause case.
Facts. Christy Brzonkala enrolled at Virginia Tech in the fall of 1994. Shortly after
enrolling, she was allegedly repeatedly sexually assaulted by two varsity football players,
including Respondent. After the incident Brzonkala suffered severe emotional distress.
She twice participated in academic hearings against Respondent and later dropped out of
the school. She finally brought suit against the two male students, including the
Respondent and the university in Federal District Court.
Issue. Is § 13981 of the Act a constitutional exercise of Congress' commerce power?
1 • Applying the three-prong test from Lopez, 514 U.S. 549 (1995), the
Supreme Court of the United States (Supreme Court) determined that
violence against women does not substantially affect interstate commerce.
2 • The Supreme Court further defined the aggregate effects test (see
Wickard v. Filburn, 317 U.S. 111 (1942)) by noting that intrastate
activities must be considered in the aggregate only if the activities
themselves are economic in nature.
Dissent. Justice David Souter (J. Souter), dissenting, argued that the aggregate effects of
sexual assault are economically felt and therefore proper subject for regulation by the
commerce power.
Concurrence. Justice Clarence Thomas (J. Thomas) concurs, but reiterates his belief that
the Supreme Court should develop a new standard for review of Commerce Clause cases.
Discussion. United States v. Morrison makes clear that Lopez is not a speed bump in the
Supreme Court's Commerce Clause jurisprudence, but rather a new direction altogether.
The Supreme Court is more capable of reining in congressional action as not substantially
related to interstate commerce.
58 Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers
Solid Waste Agency of Northern Cook County v. U.S. Army Corps of
Engineers
Citation. 531 U.S. 159 (2001)
Brief Fact Summary. A consortium of cities and villages sought to purchase a "disposal
site for baled nonhazardous solid waste." A government agency attempted to stop them
from buying the site.
Synopsis of Rule of Law. "Permitting respondents to claim federal jurisdiction over
ponds and mudflats falling within the 'Migratory Bird Rule' would result in a significant
impingement of the States' traditional and primary power over land and water use."
Facts. This case involved the interpretation of Section 404(a) of the Clean Water Act (the
"Act"). The purpose of the Act was to "restor[e] and maintain the chemical, physical, and
biological integrity of the Nation's waters." The court observed "§ 404(a) authorizes
respondents to regulate the discharge of fill material into 'navigable waters,' [ ] which the
statute defines as 'the waters of the United States, including the territorial seas'". In an
attempt to clarify its jurisdiction under §404(a), the Respondent in 1986 promulgated the
"Migratory Bird Rule", which "stated that § 404(a) extends to intrastate waters: a. Which
are or would be used as habitat by birds protected by Migratory Bird Treaties; or b.
Which are or would be used as habitat by other migratory birds which cross state lines; or
c. Which are or would be used as habitat for endangered species; or d. Used to irrigate
crops sold in interstate commerce."
1 • The Petitioner, Solid Waste Agency of Northern Cook County (the
"Petitioner"), a consortium of 23 suburban Chicago cities and villages, was
looking for a "disposal site for baled nonhazardous solid waste." The
Petitioner was informed by the Chicago Gravel Company of such a site in two
Illinois counties that used to be home to a sand and gravel pit mining
operation. Now, this area was a "successional state forest" with several
seasonable ponds. The Petitioner wished to purchase the site, but since they
would have to fill certain of the ponds on the site, needed a permit under
§404(a) of the Act. The Respondent, U.S. Army Corps of Engineers (the
"Respondent"), was informed by the Illinois Nature Preserves Commission
(the "Commission"), that migratory birds had been observed in the potential
"disposal site for baled nonhazardous solid waste." The Respondent then
interpreted §404 of the Act to "confer federal authority over an abandoned
sand and gravel pit in northern Illinois which provides habitat for migratory
birds." Accordingly, the Respondent then asserted jurisdiction over the site
pursuant to part (b) of the "Migratory Bird Rule" and refused to issue the
required §404(a) permit.
Issue. Do the provisions of §404 of the Act extend to the waters providing a habitat for
migratory birds?
59 Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers
Held. No. The court concluded that the "Migratory Bird Rule" is not supported by the
text and purposes of the Act. The court rejected the Respondent's argument that "isolated
ponds, some only seasonal, wholly located within two Illinois counties, fall under §
404(a)'s definition of 'navigable waters' because they serve as habitat for migratory
birds."
1 • The court also rejected the Respondent's contention that the "Migratory
Bird" rule "falls within Congress' power to regulate intrastate activities that
substantially affect interstate commerce" because the Act clearly extends to
"navigable waters" and "waters of the United States".
2 • Further, "[p]ermitting respondents to claim federal jurisdiction over ponds
and mudflats falling within the 'Migratory Bird Rule' would result in a
significant impingement of the States' traditional and primary power over land
and water use."
Dissent. Justice John Paul Stevens ("J. Stevens") filed a dissenting opinion joined by
Justice David Souter ("J. Souter"), Justice Ruth Bader Ginsburg ("J. Ginsburg") and
Justice David Breyer ("J. Breyer"). The dissenting justices argued "[i]n its decision today,
the Court draws a new jurisdictional line, one that invalidates the 1986 migratory bird
regulation as well as the Corps' assertion of jurisdiction over all waters except for
actually navigable waters, their tributaries, and wetlands adjacent to each. Its holding
rests on two equally untenable premises: (1) that when Congress passed the [Act] it did
not intend "to exert anything more than its commerce power over navigation,"; and (2)
that in 1972 Congress drew the boundary defining the Corps' jurisdiction at the odd line
on which the Court today settles."
1 • The justices found that the "Migratory Bird Rule" could be analyzed under
those activities that "substantially affect" interstate commerce. Additionally,
"it is not necessary that each individual instance of the activity substantially
affect commerce; it is enough that, taken in the aggregate, the class of
activities in question has such an effect." The dissent then recognized that the
activity being regulated is the "discharge of fill material into the water", which
was most likely undertaken for commercial reasons. Additionally, "[t]he
causal connection between the filling of wetlands and the decline of
commercial activities associated with migratory birds is not 'attenuated,' it is
direct and concrete." Further, "the migratory bird rule does not blur the
"distinction between what is truly national and what is truly local."
Discussion. It is interesting to read the majority and dissenting opinions alongside one
another to see how different justices construe where and when the commerce clause
applies.
60 Pierce County Washington v. Guillen
Pierce County Washington v. Guillen
Citation. 123 S.Ct. 720
Brief Fact Summary. Legislation made certain information gathered from state and local
governments about their most dangerous roads inadmissible in federal and state court
actions.
Synopsis of Rule of Law. "[B]oth the original § 409 and the 1995 amendment can be
viewed as legislation aimed at improving safety in the channels of commerce and
increasing protection for the instrumentalities of interstate commerce."
Facts. This case involves the Hazard Elimination Program (the "Program"). The Program
grants state and local governments funding to improve the most dangerous portions of
their roads. To be eligible for funding under the Program, the states or local government
must "undertake a thorough evaluation of its public roads." Section 152(a)(1) provides
that state and local governments must "conduct and systematically maintain an
engineering survey of all public roads to identify hazardous locations, sections, and
elements, including roadside obstacles and unmarked or poorly marked roads, which may
constitute a danger to motorists, bicyclists, and pedestrians, assign priorities for the
correction of such locations, sections, and elements, and establish and implement a
schedule of projects for their improvement." Upon its passage, the states objected that
§152 did not contain a confidentiality provision. The states feared that before
improvements could be made to the dangerous roads, their liability would be increased
with regard to accidents on those roads, if the information provided to the federal
government is also provided to Plaintiffs attorneys. In response, the Department of
Transportation (the "Department") recommended legislation providing for confidentiality
of the information. Congress subsequently promulgated 23 U.S.C. §409, which provides
in pertinent part, information learned from the evaluation of the roads "shall not be
admitted into evidence in Federal or State court or considered for other purposes in any
action for damages arising from any occurrence".
1 • On July 5, 1996, the Respondent, Ingacio Guillen's (the "Respondent") wife,
was killed in a car accident in an intersection that the Petitioner, Pierce
County Washington (the "Petitioner") applied for, and eventually receive §152
funding to make improvements. The Petitioner received the funds on July 26,
1996. The Respondent's counsel sought to obtain information about previous
accidents that occurred in the relevant intersection, but the Petitioner refused
to provide any documents, citing 23 U.S.C. §409.
Issue. Does "23 U.S.C. § 409, which protects information 'compiled or collected' in
connection with certain federal highway safety programs from being discovered or
admitted in certain federal or state trials, [ ] a valid exercise of Congress' authority under
the Constitution"?
61 Pierce County Washington v. Guillen
1 • Yes. Based on [United States v. Lopez], Congress can "regulate the use of
the channels of interstate commerce." Additionally, the Commerce Clause
empowers Congress to "regulate and protect the instrumentalities of interstate
commerce, or persons or things in interstate commerce, even though the threat
may come only from intrastate activities." The court recognized that §152 was
promulgated by Congress to "reduc[e] hazardous conditions in the Nation's
channels of commerce." This effort was frustrated due to the state's fear that
their liability for negligence actions would be increased "by providing would-
be plaintiffs a centralized location from which they could obtain much of the
evidence necessary for such actions." Based on this problem, Congress could
have reasonably believed that the adoption of 23 U.S.C. § 409 "would result
in more diligent efforts to collect the relevant information, more candid
discussions of hazardous locations, better informed decisionmaking, and,
ultimately, greater safety on our Nation's roads."
Discussion. The regulation of the roads has traditionally been within Congress's
commerce power.
62 New York v. United States
New York v. United States
Citation. 505 U.S, 144 (1992).
Brief Fact Summary. The Low-Level Radioactive Waste Policy Amendments Act of
1985 (the Act) sought to address disposal of radioactive waste. One provision of the Act
requires the State to take title to any waste of which it is not able to provide disposal.
Synopsis of Rule of Law. Congress may not "commandeer[r] the legislative processes of
the States" by compulsion.
Facts. Low-level radioactive waste is a common byproduct of many modern processes.
Disposal is a national issue, in that such waste must be stored for hundreds of years
before further disposal becomes safe. The Act in question sought to address the problem
by offering various monetary incentives to states for opening their own sites. However,
one provision requires that a state take title of and assume liability for radioactive waste
produced within its borders for which it cannot provide disposal.
Issue. May Congress compel the States to choose between expending state funds and
enforcing a federal regulatory scheme?
1 • The Respondents, the United States (Respondents), argued that by
allowing the States to choose to take title or to dispose of the waste
themselves, the take title provision is a constitutional exercise of
regulatory power.
2 • It is clear that Congress cannot force a State government to enforce a
federal regulatory scheme.
3 • It is also clear that requiring a State government to take possession of the
waste is equivalent to requiring a State to spend state funds. From this, it
follows that requiring a State to choose between to unconstitutional
alternatives is not a constitutional exercise of federal power.
Dissent. Justice Byron White (J. White), dissenting, argues that the congressional
exercise of authority was in response to a mandate from the States and that the formalism
adopted by the majority actually hinders Congress' ability to respond to State requests.
1 • Justice John Paul Stevens (J. Stevens) argues that it is improper to say
"Congress does not have the power to issue 'a simple command to state
governments to enforce legislation enacted by Congress.'"
Discussion. Part of the widening federalist jurisprudence of the Rehnquist Court, New
York v. United States stands for the proposition that if Congress could commandeer the
States' actions in all areas, there would be no political need for States.
63 Printz v. United States
Printz v. United States
Citation. 521 U.S. 898 (1997).
Brief Fact Summary. Various state chief law enforcement officers ("CLEOs") brought
suit, alleging that the interim provisions of the Brady Handgun Violence Prevention Act
(the Act) unconstitutionally required state executive officers to apply a federal regulatory
program.
Synopsis of Rule of Law. "The Federal Government may not compel the States to enact
or administer a federal regulatory program."
Facts. The Act called for the establishment of a national background check system for
hand gun purchasers by November 30, 1998. In the interim, the Act required state and
local law enforcement to do background checks before issuing firearm permits. The
Petitioners, Printz and another county sheriff (Petitioners), alleged that this requirement
overreaches the power of the Federal Government.
Issue. May Congress require state law enforcement agents to administer the background
checks required by the Act?
1 • The interim provisions violate the federalist structure of the constitution,
by requiring state executive officers to administer federal regulations.
2 • The provisions also violate the federal separation of powers, by
removing Presidential oversight from a federal program. Because the Act
is a federal statute, the Constitution of the United States relegates the
authority to enforce it to the President of the United States. By putting the
enforcement of the interim provisions in the hands of state and local
officials, Congress has stripped the federal executive of his constitutional
duty to enforce federal legislation.
Dissent. Justice John Paul Stevens (J. Stevens) reiterates his previous position that the
Tenth Amendment's borders should be established by the political branches.
Concurrence. Justice Clarence Thomas (J. Thomas) concurs, but goes further in saying
that Congress not only lacks the ability to require the interim provisions under the Tenth
Amendment, but also lacks the ability to control intrastate point of sale transactions under
the commerce power.
Discussion. Printz extends the Tenth Amendment prohibition of compelling state action
to administer federal programs from state legislatures New York v. United States, 505
U.S. 144 (1992) to state executive agencies. New York addressed the issue of Congress
requiring state legislatures to dispose of radioactive waste or take title to it, whereas
Printz deals with the federal government requiring action of state and local executives.
64 Reno v. Condon
Reno v. Condon
Citation. 120 S. Ct. 666 (2000).
Brief Fact Summary. South Carolina brought suit against United States Attorney
General Reno, arguing that the Driver's Privacy Protection Act of 1994 ("DPPA")
violated the Tenth Amendment's limitation on the Federal Government's power to
regulate the states.
Synopsis of Rule of Law. The Tenth Amendment does not prevent the Federal
Government from regulating the States as individual entities if it does not ask the States
to enforce a federal program.
Facts. The DPPA establishes penalties for disclosure or resale of personal information
contained in state motor vehicle records. These penalties apply to individuals and state
agencies. The Respondent, South Carolina's Attorney General Charlie Condon
(Respondent), argued that by requiring States to abide by the federal guidelines, Congress
has overstepped the limitations of the Tenth Amendment.
Issue. May Congress require State compliance with the DPPA?
Held. Yes. Appeals court ruling reversed and remanded. The DPPA does not require the
states to regulate their own citizens. Neither does it require the South Carolina legislature
to enact any laws or assist in the enforcement of federal statutes regulating private
citizens. As the DPPA only restricts state government action, it cannot be said to
commandeer state government in violation of the Tenth Amendment.
Discussion. The Tenth Amendment limitations on federal power extend only to attempts
by the Federal Government to compel legislative or executive action on the part of the
States in the regulation of their citizens as part of administering a federal program. In
Reno v. Condon, the Supreme Court of the United States illustrates two basic concepts:
(i) the supremacy of federal law (Congress may pass laws that affect state action) and (ii)
the sovereignty of the individual States (Congress may not pass laws that require the
states to expend resources enforcing federal policy).
65 United States v. Butler
United States v. Butler
Citation. 297 U.S. 1 (1936).
Brief Fact Summary. Butler, the Respondent (Respondent), seeks judgment that the
Agricultural Adjustment Act of 1933 (the Act) is unconstitutional in its scope.
Synopsis of Rule of Law. Congress may tax and apportion for the general welfare, but
Congress may not use taxation as a means to exercise powers retained by the States.
Facts. The Act authorized the setting of limits on the production of certain crops and the
imposition of taxes on crops produced in excess of these limits. Respondent alleges that
this tax acts as a regulation of crop production, which is a local issue.
Issue. May Congress tax crop production in excess of preset limits?
1 • The taxing and spending power is broad - that is, not limited to the
enumerated list of issues in Article I, § 8 of the United States Constitution
(Constitution).
2 • However, the tax in this case was levied to discourage production of
crops beyond the limits set by the Act. This is beyond the powers
delegated to the Federal Government. Specifically, the regulation of
agriculture is, absent a nexus with interstate commerce, delegated to the
states.
Dissent. Justice Harlan Stone (J. Stone) argues that the Supreme Court of the United
States (Supreme Court) has overstepped judicial restraint in declaring the Act
unconstitutional.
Discussion. United States v. Butler's holding that the taxing and spending power is broad
is still good law, however the Supreme Court's view of the Tenth Amendment's
intersection with the taxing and spending power has subsequently changed. In particular,
Butler views the Tenth Amendment as a mere tautology, a view which has changed in
subsequent cases.
66 Sabri v. United States
Sabri v. United States
Citation. 541 U.S. 600 (2004)
Brief Fact Summary. A real estate developer bribed an official to obtain certain licenses
and zoning permits. A federal statute made it illegal to bribe a public official.
Synopsis of Rule of Law. A statute criminalizing bribery need not "require proof of
connection with federal money as an element of the offense."
Facts. The Petitioner, Basim Omar Sabri (the "Petitioner"), was a real estate developer
that wished to build a hotel and retail structure in Minneapolis. The Petitioner did not
think he could obtain the requisite licenses or abide by the applicable zoning laws, so he
offered three separate bribes to a councilman between July 2, 2001 to July 17, 2001. The
city counsel of Minneapolis received a substantial amount of federal funds in 2001. The
Petitioner was charged under "18 U.S.C. § 666(a)(2), which imposes federal criminal
penalties on anyone who 'corruptly gives, offers, or agrees to give anything of value to
any person, with intent to influence or reward an agent of an organization or of a State,
local or Indian tribal government, or any agency thereof, in connection with any business,
transaction, or series of transactions of such organization, government, or agency
involving anything of value of $5,000 or more.' " Criminal liability will be found where
"the organization, government, or agency receiv[e], in any one year period, benefits in
excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan,
guarantee, insurance, or other form of Federal assistance." The district court found that
§666 was invalid. To the contrary, the Eighth Circuit held "there was nothing fatal in the
absence of an express requirement to prove some connection between a given bribe and
federally pedigreed dollars, and that the statute was constitutional under the Necessary
and Proper Clause in serving the objects of the congressional spending power."
Issue. "[W]hether 18 U.S.C. § 666(a)(2), proscribing bribery of state, local, and tribal
officials of entities that receive at least $10,000 in federal funds, is a valid exercise of
congressional authority under Article I of the Constitution"?
Held. Yes. The majority first quickly disposed of the notion that the "statute must require
proof of connection with federal money as an element of the offense." Second, the
majority observed "Congress has authority under the Spending Clause to appropriate
federal monies to promote the general welfare, Art. I, § 8, cl. 1, and it has corresponding
authority under the Necessary and Proper Clause, Art. I, § 8, cl. 18, to see to it that
taxpayer dollars appropriated under that power are in fact spent for the general welfare,
and not frittered away in graft or on projects undermined when funds are siphoned off or
corrupt public officers are derelict about demanding value for dollars."
1 • Third, "Congress does not have to sit by and accept the risk of operations
thwarted by local and state improbity." The court observed "not every bribe or
kickback offered or paid to agents of governments covered by § 666(b) will be
traceably skimmed from specific federal payments, or show up in the guise
67 Sabri v. United States
1 of a quid pro quo for some dereliction in spending a federal grant." Moreover,
that "possibility portends no enforcement beyond the scope of federal interest,
for the reason that corruption does not have to be that limited to affect the
federal interest."
Concurrence. Justice Clarence Thomas ("J. Thomas") filed a concurring opinion

"find[ing] questionable the scope the Court gives to the Necessary and Proper Clause as
applied to Congress' authority to spend. In particular, the Court appears to hold that the
Necessary and Proper Clause authorizes the exercise of any power that is no more than a
"rational means" to effectuate one of Congress' enumerated powers." J. Thomas criticizes
the majority's conclusion that "[a]ll that is necessary for § 666(a)(2) to apply is that the
organization, government, or agency in question receives more than $10,000 in federal
benefits of any kind, and that an agent of the entity is bribed regarding a substantial
transaction of that entity. No connection whatsoever between the corrupt transaction and
the federal benefits need be shown." The court criticizes the majorities justification that
just because money is fungible there is a federal interest in "prosecut[ing] a bribe paid to
a city's meat inspector in connection with a substantial transaction just because the city's
parks department had received a federal grant of $10,000". J. Thomas would have
decided this case under the Commerce Clause, but nonetheless concurs in the judgment.
Discussion. This case offers an interesting analysis of the Necessary and Proper Clause.
The concurrence, however, shows that more than one constitutional provision can be used
to analyze a given issue, depending upon which perspective you look at the issue from.
68 South Dakota v. Dole
South Dakota v. Dole
Citation. 483 U.S. 203 (1987).
Brief Fact Summary. Appellant alleges that the federal withholding of a small
percentage of highway funds to states allowing public possession or purchase of alcohol
by individuals under 21 years is unconstitutional.
Synopsis of Rule of Law. Non-coercive financial incentives by Congress are a
constitutional exercise of the taxing and spending power.
Facts. 23 U.S.C. § 158 directs the Secretary of Transportation to withhold a percentage
of federal highway funds otherwise available to states that allow the purchase or public
possession of alcohol by individuals under 21 years of age. South Dakota allows
individuals nineteen and over to purchase beer with up to 3.2% alcohol. As a
consequence, the Department of Transportation will withhold approximately 5% of the
federal highway funds earmarked for the state.
Issue. May Congress withhold funds from states that do not maintain a 21 year old
drinking age?
Held. Yes. Appeals court ruling affirmed. A withholding of a small amount of funds is
not a coercive measure and a proper exercise of taxing and spending power.
Dissent. Justices William Brennan and Sandra Day O'Connor both dissent on the
unrelated ground of the Twenty-first Amendment, which relegates regulation of alcohol
sales to the states.
Discussion. Congress may put "strings" on funds disbursed to States, so long as the
conditions are explicitly stated.
69 United States v. Morrison
United States v. Morrison
Citation. 120 S. Ct. 1740 (2000).
Brief Fact Summary. The Respondent, Morrison (Respondent), was sued under part of
the Violence Against Women Act of 1994 (Act), which penalized crimes of violence
motivated by gender. Now Respondent argues this section of the Act is beyond the scope
of Congress' power to regulate commerce.
Synopsis of Rule of Law. Intrastate actions must be economic in nature to be viewed in
aggregate by courts reviewing a Commerce Clause case.
Facts. Christy Brzonkala enrolled at Virginia Tech in the fall of 1994. Shortly after
enrolling, she was allegedly repeatedly sexually assaulted by two varsity football players,
including Respondent. After the incident Brzonkala suffered severe emotional distress.
She twice participated in academic hearings against Respondent and later dropped out of
the school. She finally brought suit against the two male students, including the
Respondent and the university in Federal District Court.
Issue. Is § 13981 of the Act a constitutional exercise of Congress' commerce power?
1 • Applying the three-prong test from Lopez, 514 U.S. 549 (1995), the
Supreme Court of the United States (Supreme Court) determined that
violence against women does not substantially affect interstate commerce.
2 • The Supreme Court further defined the aggregate effects test (see
Wickard v. Filburn, 317 U.S. 111 (1942)) by noting that intrastate
activities must be considered in the aggregate only if the activities
themselves are economic in nature.
Dissent. Justice David Souter (J. Souter), dissenting, argued that the aggregate effects of
sexual assault are economically felt and therefore proper subject for regulation by the
commerce power.
Concurrence. Justice Clarence Thomas (J. Thomas) concurs, but reiterates his belief that
the Supreme Court should develop a new standard for review of Commerce Clause cases.
Discussion. United States v. Morrison makes clear that Lopez is not a speed bump in the
Supreme Court's Commerce Clause jurisprudence, but rather a new direction altogether.
The Supreme Court is more capable of reining in congressional action as not substantially
related to interstate commerce.
70 Katzenbach v. Morgan and Morgan
Case: Katzenbach v. Morgan and Morgan 384 U.S. 641 (1966).
Brief Fact Summary. New York State required English literacy as a prerequisite to
voting. The State Attorney General alleges that § 4(e) of the Voting Rights Act of 1965
(the Act) can only be sustained if the Court determines New York's requirement violates
the Equal Protection Clause of the Fourteenth Amendment of the United States
Constitution (Constitution).
Synopsis of Rule of Law. A congressional enactment under § 5 of the Fourteenth
Amendment of the Constitution (§5 of the Fourteenth Amendment) is effective if it is
"plainly adapted to [its] end" and consistent with "the letter and spirit of the constitution."
Facts. The Act prohibits denying voting rights to individuals who have successfully
completed the sixth grade in a school accredited by the Commonwealth of Puerto Rico,
on the basis of English illiteracy. The State of New York contends that the Act can only
be given effect if the New York literacy requirement violates the Equal Protection Clause
of the Fourteenth Amendment.
Issue. Does § 5 of the Fourteenth Amendment allow Congress to overturn state
legislation without a judicial determination that the state legislation violates the
Fourteenth Amendment?
Held. Yes. Appeals court ruling affirmed.
1 • The Supreme Court of the United States (Supreme Court) establishes the
test that a Congressional enactment under § 5 of the Fourteenth
Amendment if it is plainly adapted and consistent with the letter and spirit
of the constitution.
2 • In the current case, both prongs of the test are met: the Act specifically
prohibits denying voting rights to a class of voters.
Dissent. Justice John Marshall Harlan (J. Harlan) dissents not so much on the general test
the Supreme Court of the United States (Supreme Court) develops, but on grounds that
Congress must still have constitutional bounds on its powers. In this case, he believes
Congress has overstepped its authority by regulating what is essentially a states rights
issue.
Discussion. The majority states that the Appellant's view of Congressional authority
under § 5 of the Fourteenth Amendment invalidates the text. Why would § 5 of the
Fourteenth Amendment be necessary if Congress could only overturn legislation that the
courts could invalidate on their own?
71 City of Boerne v. Flores
Case: City of Boerne v. Flores 521 U.S. 507 (1997).
Brief Fact Summary. The Archbishop of San Antonio challenged a city ordinance of
Boerne under the Religious Freedom Restoration Act ("RFRA"). The Respondent argued
the ordinance is an unconstitutional exercise of congressional power under § 5 of the
Fourteenth Amendment of the United States Constitution (Constitution).
Synopsis of Rule of Law. Congressional action under § 5 of the Fourteenth Amendment
of the Constitution may be remedial or preventative in nature, but it may only enforce
constitutional rights, not create substantive rights.
Facts. After the Supreme Court of the United States (Supreme Court) narrowed the scope
of the Free Exercise Clause of the Constitution in Employment Division, Department of
Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), Congress passed the RFRA,
seeking specifically to overturn the test developed in Smith. Specifically, the RFRA
prohibits government from "substantially burdening" the exercise of religion, even if the
burden results from a rule of general applicability, unless the government demonstrates
(1) a compelling government interest and (2) is the least restrictive means of achieving
the interest.
Issue. Can Congress create a substantive right under § 5 of the Fourteenth Amendment of
the Constitution?
1 • The ability to create substantive constitutional rights under § 5 of the
constitution would destroy the Constitution's status as the supreme law of
the land and relegate it to mere legal code.
2 • The Supreme Court acknowledges remedial laws may also be
preventative legislation, but says there must be congruence between the
means and the ends to be achieved and proportionality to a remedial or
preventative objective.
Dissent. Justices Sandra Day O'Connor (J. O'Connor) and David Souter (J. Souterg)
dissented in part, largely due to their unhappiness with the Smith decision, which the
majority upholds as precedent
Discussion. Boerne v. Flores slows down the expansion of Congressional authority under
§ 5 of the Fourteenth Amendment of the Constitution. The Supreme Court holds that
Congress still has authority to "enforce" by passing legislation affecting otherwise
constitutional state statutes, but it may only do so in a remedial or preventative manner.
Congress may not create a substantive constitutional right.
72 Fitzpatrick v. Bitzer
Fitzpatrick v. Bitzer
Citation. 427 U.S. 445 (1976).
Brief Fact Summary. In 1972, Congress amended Title VII of the Civil Rights Act of
1964 (the Act), authorizing private suits for monetary damages. In doing so, Congress
cited its authority under § 5 of the Fourteenth Amendment (§5 of the Fourteenth
Amendment) of the United States Constitution (Constitution).
Synopsis of Rule of Law. Congress may authorize private suits against states under § 5
of the Fourteenth Amendment that are impermissible in other contexts.
Facts. In 1972, Congress amended the Act authorizing private suits for monetary
damages, citing its authority under § 5 of the Fourteenth Amendment. Appellant argues
that the Eleventh Amendment of the Constitution grant of sovereign immunity to the
States prevents Congress from authorizing such suits.
Issue. Can Congress abridge sovereign immunity by exercising its authority under § 5 of
the Fourteenth Amendment?
Held. Yes. Affirmed. The Supreme Court of the United States (Supreme Court) notes that
§ 5 of the Fourteenth Amendment allows Congress to exercise authority that infringes on
areas otherwise relegated to other entities under the Constitution. Because of the § 5 grant
of this authority, the Supreme Court allows Congress to abrogate sovereign immunity
under the section, as well.
Discussion. Fitzpatrick v. Bitzer is the first case in the Rehnquist Court's expanding view
of the Eleventh Amendment.
73 Seminole Tribe of Florida v. Florida
Seminole Tribe of Florida v. Florida
Citation. 517 U.S. 44 (1996).
Brief Fact Summary. Petitioners brought suit under the Indian Gaming Regulatory Act,
which authorizes suits against state governments to enforce good faith negotiations with
tribes attempting to allow gambling on reservations.
Synopsis of Rule of Law. The Indian Commerce Clause does not allow Congress to
abrogate state sovereign immunity.
Facts. Petitioners sued the state of Florida, seeking to enforce good faith negotiation as
required under the Indian Gamin Regulatory Act. Respondent argues that as a sovereign
state, Congress cannot make it appear in federal court without abrogating its sovereign
immunity.
Issue. May Congress allow suit against a state under the Indian Commerce Clause, Art. I,
§ 8, cl. 3?
Held. No. Holding affirmed.
1 • Congress made clear in the Indian Gaming Regulatory Act that it
intended to abrogate States' sovereign immunity. However, it lacks the
ability to do so under its Article I powers.
2 • Section 5 of the Fourteenth Amendment is the only authority Congress
has to authorize a private suit against a state.
Dissent.
1 • Justice John Paul Stevens believes the Eleventh Amendment only
prohibits suits against a state by citizens of another state.
2 • Justice David Souter argues that the majority gives the states sovereign
immunity that they did not enjoy, even prior to the ratification of the
constitution.
Discussion. The current Eleventh Amendment jurisprudence does not focus on the clear
text of the Eleventh Amendment, but rather the interpretation of the judicial doctrine of
sovereign immunity, which acts as a bar against bringing suit against a state defendant.
74 Alden v. Maine
Alden v. Maine
Citation. 527 U.S. 706 (1999).
Brief Fact Summary. The Petitioners, a group of probation officers (Petitioners),
brought suit in Maine State Court, alleging that their employer, the State of Maine
(Respondent) violated overtime provisions of the federal Fair Labor Standards Act
("FLSA").
Synopsis of Rule of Law. State sovereign immunity prevents a non-consenting state
from being sued in state court for violations of federal law.
Facts. Petitioners had originally brought suit in federal court, but while their suit was
pending, the Court decided Seminole Tribe of Florida, 517 U.S. 44 (1996), and the
District Court dismissed their claim. Afterward, petitioners brought their suit in state
court, where it was again dismissed. The dismissal was upheld by the Maine Supreme
Court.
Issue. May Congress require non-consenting states to submit to private suits in their own
courts under Article I?
Held. No. State Supreme Court ruling affirmed.
1 • The United States Supreme Court (Supreme Court) recounts the judicial
development of the doctrine of state sovereign immunity and its
application in the federal courts.
2 • The Supreme Court rules that to allow Congress to bring a non-
consenting state into state court when it could not do so in federal court
would make hollow the doctrine of sovereign immunity.
Dissent. The dissent again argues that there is no historical basis for sovereign immunity
for the states, and hence, no argument for construing immunity from the Eleventh
Amendment.
Discussion. The Supreme Court again expands the concept of sovereign immunity. There
is no Article I power to abrogate sovereign immunity either in state or federal court.
There is only Fourteenth Amendment authority, and then, only when no substantive right
has been created, and only when the means is congruent and proportional to the remedial
or preventative ends.
75
CHAPT
ER III.
The
Federal
Executiv
e Power
76 Youngstown Sheet & Tube Co. v. Sawyer
Youngstown Sheet & Tube Co. v. Sawyer
Citation. 343 U.S. 579 (1952).
Brief Fact Summary. Steel workers threatened to strike and shutdown all steel mills
throughout the United States. To avoid this potential harm to the national defense, the
President issued an executive order placing control of all mills in the hands of the
Secretary of Commerce.
Synopsis of Rule of Law. The President is limited to vetoing and suggesting laws; he is
not to create laws.
Facts. Youngstown Sheet & Tube Co. (Petitioner) complied with the Executive order but
is now refuting the authority because Congress did not approve the order.
1 • United Steelworkers and steel mill owners failed to come to a labor
agreement over a period of several days.
2 • A strike was ordered to begin, but the President issued his executive
order to prevent the strike. The order seized all steel companies and forced
the presidents to serve as operating managers under the direction of the
Secretary of Commerce.
Issue. Did the President exceed the limit of his powers by issuing the seizure of all steel
mills?
Held. Yes. The President may not make such an order without the direction of the
Congress or under the express authority of the United States Constitution.
Dissent. The President was justified in his actions because the world is still recovering
from war and he kept the Congress fully informed of his actions.
Concurrence. The President's power to issue orders is limited.
1 • Justice Jackson: The President's power is at its lowest when he acts
without the support of Congress. The power is equivalent to his
Constitutional power minus the Constitutional power of Congress over the
matter.
2 • Justice Douglas: The existence of an emergency does not create powers
for the President.
3 • Justice Frankfurter: Presidential power to seize property has been
granted only when "war is imminent", there are "needs of public safety",
or of national security or defense.
77 Youngstown Sheet & Tube Co. v. Sawyer
Discussion. The only time an order such as this would be sustained would be in the
"theater of war." In that case alone it would be appropriate for a military commander to
take control of a supply center to prevent the disruption of the war efforts. Here, there
was no such danger, only a perceived threat. Furthermore, the President acted alone
without the support of Congress.
78 United States v. Richard M. Nixon, President of the United States
United States v. Richard M. Nixon, President of the United States
Citation. 418 U.S. 683 (1974).
Brief Fact Summary. The Plaintiff, the President of the United States Richard Nixon
(Plaintiff) refused to turn over tapes of his secretly recorded conversations that had been
subpoenaed to assist in the prosecution of individuals in the Watergate break-in.
Synopsis of Rule of Law. Conversations between the President of the United States (the
President) and his advisors are generally privileged, but that privilege is no absolute.
Facts. In the famous Watergate scandal, several of the Plaintiff's associates were indicted
on charges of conspiracy and obstruction of justice, though the Plaintiff was not indicted
himself. The district court issued a subpoena ordering the Plaintiff to produce the tape
recordings of his conversations with his advisors in one of the criminal cases that had
ensued. The Plaintiff brought this motion to quash the subpoena on the grounds of
executive privilege and separation of powers.
1 • The district court denied the Plaintiff's motion to quash and the Supreme
Court of the United States (Supreme Court) granted review.
Issue. Are the Presidents' confidential conversations with his advisors/associates subject
to an absolute privilege?
Held. No, there is no absolute privilege.
Discussion. The Plaintiff argues that all private conversations between himself and his
advisors/associates are absolutely privileged, claiming that his advisors may fear to speak
candidly if they know that the conversations may later be used against them in a court of
law. The court agreed that the President's communications to his advisors are subject to
general claims of confidentiality. However, the Supreme Court said this was based on
public policy grounds.
1 • The Plaintiff also raised a separation of powers argument, which the
Supreme Court rejected. Our government consists of three interdependent
and coequal branches. While the Supreme Court recognizes a need for a
strong Presidential privilege, that privilege must be weighed against the
fair administration of justice. Withholding information in a criminal trial
will cut deeply into the guarantee of due process and gravely impair the
basic function of the courts. Weighing the countervailing arguments
against each other, the President's generalized interest in confidentiality
cannot prevail over the fundamental demands of the criminal justice
system.
79 William J. Clinton, President of the United States v. City of New York
William J. Clinton, President of the United States v. City of New York
Citation. 524 U.S. 417 (1998).
Brief Fact Summary. The Defendant, the President of the United States, William
Clinton (Defendant) used his newly acquired Line Item Veto Power to cancel two items
of congressional spending. The Plaintiffs the City of New York and various others
(Plaintiffs) and the intended recipients of the vetoed spending sued.
Synopsis of Rule of Law. The Line Item Veto Power is unconstitutional.
Facts. The Line Item Veto Act of 1996 (the Act) gave the President of the United States
(the President) the power to veto (cancel) provisions of certain spending and taxing bills
after they had been signed into law. The Act sets out procedures the President must
follow, including a procedure where the President must notify Congress of the
cancellation and Congress can veto the President's cancellation with a majority vote. The
Defendant used the Line Item Veto power to cancel an item of spending that would
benefit only New York and also to cancel a tax break to farmers' cooperatives. It is
undisputed that the Defendant complied with the Act, that Congress properly enacted the
Act and that the spending and taxing issues in this case fall within the Act.
Issue. May Congress grant the President the authority to cancel parts of legislation after
they have been enacted as law?
Held. No, the Line Item Veto is unconstitutional because the "repeal of statutes, no less
than enactment, must conform with Article I" [INS v. Chadha (1983).]
Dissent. Justice Stephen Breyer (J. Breyer) wrote the opinion and feels the majority is
flawed because it assumes that the Defendant has been granted the authority to "repeal"
or "amend" laws. Congress did not attempt to give the President the true power to "veto"
portions of already enacted laws. The Defendant simply followed the Act as handed
down by Congress.
Concurrence. Justice Anthony Kennedy (J. Kennedy) felt there was a separation of
powers problem. "Our very liberty is at stake when one or more of the branches seek to
transgress the separation of powers: concentration of power in the hands of a single
branch is a threat to liberty."
Discussion. The President's role in lawmaking is limited to initiating, influencing and
vetoing legislation. The President's Line Item Veto power differs from that of a
constitutional veto. The constitutional veto takes place before the bill becomes law,
whereas the statutory Line Item Veto takes place after the bill becomes law. Therefore, it
is a repeal rather than a veto. Historically, it has been established that a President must
approve an entire bill or veto it in toto. Here constitutional silence on the President's
power to repeal or amend duly enacted statutes is equivalent to an express prohibition.
80 A.L.A. Schechter Poultry Corporation v. United States
A.L.A. Schechter Poultry Corporation v. United States
Citation. 295 U.S. 495 (1935).
Brief Fact Summary. Congress delegated authority to an executive agency to regulate
various industries. In turn, the President of the United States (the President) redelegated
that power to business groups and boards of various industries, to create industry wide
codes of conduct. The Defendant, A.L.A. Schechter Poultry Corporation (Defendant),
was indicted for violating one of the codes.
Synopsis of Rule of Law. Congress may not delegate law-making authority to an
executive agency without prescribing specific standards for the exercise of that authority.
Facts. Under the National Industrial Recovery Act (NIRA), Congress delegated to the
President the authority to approve and implement codes of conduct for various industries,
which were suggested by numerous trade and industrial groups. The statute did not,
however, set forth standards to guide the formulation of the codes. One such code was the
Code of Fair Competition for the Live Poultry Industry (the Code), which proscribed
labor and operational standards for poultry businesses in and around New York City. The
Defendant was indicted and convicted for violating portions of the Code.
Issue. May Congress delegate unrestrained law making authority to the executive
branch?
Held. No, the legislature may not delegate to the executive branch the unfettered
authority to make law. Since there were no standards or guidelines for creating the codes,
the Congress improperly delegated legislative power.
Discussion. To determine whether the passage of these codes was an improper delegation
of legislative authority, two grounds should be examined. First, in determining what
limits Congress set for the President, look to trade and industrial groups that propose the
codes because they must be "truly representative" of the industry members. Second, the
codes must not promote monopolies or be oppressive to small enterprises. In short, the
NIRA sets up no specific standards for the President to apply in determining whether to
accept or reject the proposed codes. This leaves the discretion to the President virtually
unfettered. Thus, the code-making authority granted to the President is an
unconstitutional delegation of power.
81 Panama Refining Co. v. Ryan
Panama Refining Co. v. Ryan
Citation. 293 U.S. 388 (1935).
Brief Fact Summary. Congress delegated to the President of the United States (the
President) the power to restrict or prohibit the interstate and foreign transport of
petroleum.
Synopsis of Rule of Law. It is a violation of the separation of powers doctrine for
Congress to delegate law-making authority to the President without imposing standards
or rules limiting that authority.
Facts. Congress enacted a provision of the National Industrial Act (NIRA) that gave the
President the power to prohibit the transportation of petroleum products in excess of the
amount permitted by state law. Based on this provision, the President made an Executive
Order enacting such a prohibition. The Plaintiff, Panama Refining Co. (Plaintiff) brought
suit to enjoin the Defendants, certain government officials (Defendant), from enforcing
the Executive Order. The District Court granted a permanent injunction against
enforcement, but the Court of Appeals reversed.
Issue. May Congress delegate unrestricted law-making authority to the President?
Held. No, congressional delegation of power to the executive branch must be specific
and limited. The NIRA did not include any policy guidelines for prohibiting or not
prohibiting the transportation of petroleum production in excess of state allowances. The
President was granted unfettered discretion. Congress let the matter to him "to be dealt
with as he pleased." Under the United States Constitution (Constitution) Congress is not
allowed to abdicate or transfer its essential legislative powers.
Discussion. Congress simply left the matter to the President (in deciding the
circumstances and conditions under which the transportation of petroleum products
should be prohibited) without setting standards or rules to be followed. Congress cannot
delegate to others the essential legislative functions with which it was vested. If the
Supreme Court of the United States (Supreme Court) were to hold the legislation valid,
Congress would be free to delegate authority at will to the President, another officer, or
an administrative body. The delegation of authority was unlawful and invalid.
82 Whitman v. American Trucking Assn., Inc.
Whitman v. American Trucking Assn., Inc.
Citation. 531 U.S. 457 (2001)
Brief Fact Summary. This case involved whether a provision in the Clean Air Act (the
"Act") was an inappropriate delegation of Congressional authority to an agency.
Synopsis of Rule of Law. "Section 109(b)(1) of the CAA, which [the Supreme Court]
interpret[ed] as requiring the EPA to set air quality standards at the level that is 'requisite'
that is, not lower or higher than is necessary--to protect the public health with an
adequate margin of safety, fits comfortably within the scope of discretion permitted by
our precedent.
Facts. Section 109(a) of the Clean Air Act ("CAA") mandates that the Administrator of
the Environment Protection Agency ("EPA") promulgate, National Ambient Air Quality
Standards ("NAAQS"). The NAAQS must be issued for each air pollutant for "which 'air
quality criteria' have been issued under § 108, 42 U.S.C. § 7408." Section 109(b)(1) of
the Act requires the EPA to set "ambient air quality standards the attainment and
maintenance of which in the judgment of the Administrator, based on [the] criteria
[documents of § 108] and allowing an adequate margin of safety, are requisite to protect
the public health." These NAAQS must be reviewed by the Administrator at "at five-year
intervals" and make "such revisions ... as may be appropriate." The District of Columbia
Circuit found that §109(b)(1) improperly delegated legislative power to the Administrator
in violation of Article 1, §1 of the United States Constitution (the "Constitution"). The
district court found specifically that the EPA's interpretation of the statute provides no
"intelligible principle" to guide the agency's exercise of authority. The district court
however found that the EPA "could perhaps avoid the unconstitutional delegation by
adopting a restrictive construction of § 109(b)(1), so instead of declaring the section
unconstitutional the court remanded the NAAQS to the agency." The Court of Appeals
affirmed the district court.
Issue. "[W]hether § 109(b)(1) of the Clean Air Act (CAA) delegates legislative power to
the Administrator of the Environmental Protection Agency (EPA)?"
Held. No. Judge Antonin Scalia ("J. Scalia"), writing for the Supreme Court of the
United States ("Supreme Court") observed, "[t]he Court of Appeals held that [§109(b)(1)]
as interpreted by the Administrator did not provide an 'intelligible principle' to guide the
EPA's exercise of authority in setting NAAQS. '[The] EPA,' it said, 'lack[ed] any
determinate criteria for drawing lines. It has failed to state intelligibly how much is too
much.' [ ] The court hence found that the EPA's interpretation (but not the statute itself)
violated the nondelegation doctrine." When analyzing a delegation challenge, the court
must determine whether a statute has delegated a legislative power to an agency in
violation of Article 1, §1 of the United States Constitution (the "Constitution"). The
Supreme Court has consistently recognized that when allocating decision-making
authority to agencies Congress must "lay down by legislative act an intelligible principle
to which the person or body authorized to [act] is directed to conform." The court also
83
disagreed with the lower courts suggestion "that an agency can cure an unlawful
delegation of legislative power by adopting in its discretion a limiting construction of the
statute."
1 • The court recognized certain minimum requirements or limits in the text of
§109(b)(1) of the Act. J. Scalia compared the limits in this statute to those
limits present in recognized by the court in [Touby v. United States]
concerning the Attorney General's right to designate a drug a controlled
substance and those limits in the Occupational Safety and Health Act upheld
by the Supreme Court in [Industrial Union Dept., AFL-CIO v. American
Petroleum Institute]. Based on these precedents and others, the court
recognized the "the scope of discretion that § 109(b)(1) allows is well within
the outer limits of the Court's nondelegation precedents." Further, the court
recognized "[i]n the history of the Court we have found the requisite
'intelligible principle' lacking in only two statutes, one of which provided
literally no guidance for the exercise of discretion, and the other of which
conferred authority to regulate the entire economy on the basis of no more
precise a standard than stimulating the economy by assuring 'fair
competition.'" J. Scalia then laid out various other statutes, which the Supreme
Court has upheld.
2 • J. Scalia then recognized, the court has never "even in sweeping regulatory
schemes [ ]demanded, as the Court of Appeals did here, that statutes provide a
'determinate criterion' for saying 'how much [of the regulated harm] is too
much.' " Based on these principles, the Supreme Court found that "Section
109(b)(1) of the CAA, which [the Supreme Court] interpret[ed] as requiring
the EPA to set air quality standards at the level that is "requisite" that is, not
lower or higher than is necessary--to protect the public health with an
adequate margin of safety, fits comfortably within the scope of discretion
permitted by our precedent."
Discussion. This case provides an interesting discussion of the non-delegation doctrine

and how hard it is to prove that a delegation was improper.
84 Immigration and Naturalization Services v. Jagdish Rai Chadha
Immigration and Naturalization Services v. Jagdish Rai Chadha
Citation. 462 U.S. 919 (1983).
Brief Fact Summary. The Plaintiffs, Chadha and others (Plaintiffs), challenged a federal
statute, which purported to authorize one House of Congress, by resolution, to invalidate
the decision of the Attorney General of the United States (Attorney General) to allow a
specific deportable illegal immigrant to remain in the United States.
Synopsis of Rule of Law. Legislative action is not legitimate unless there is bicameral
approval and presentment to the President of the United States.
Facts. Chadha was an alien who was lawfully admitted into the United States on a non-
immigrant student visa. Chadha overstayed his visa and the Defendant, the Immigration
and Naturalization Service (Defendant), began deportation proceedings. The Immigration
judge found that Chadha met the requirements set out in the Immigration and Nationality
Act (the Act) for suspension of deportation. Under the Act, the Attorney General reported
the suspension of deportation to Congress. However, the House of Representatives
passed a resolution that Chadha did not meet the statutory requirements for suspension of
deportation. Neither the Senate nor the President reviewed the decision. Chadha filed a
petition with the Defendant and the Defendant agreed that the statute was
unconstitutional. The court of appeals held that the separation of powers doctrine was
violated by the
Issue. Is the one-house "legislative veto" unconstitutional, even when authorized by a
properly enacted statute?
Held. Yes, the legislative veto is unconstitutional. Congress delegated the Attorney
general the power to determine, whether a particular deportable alien could remain in the
United States. The United States Constitution (Constitution) does not permit Congress to
then delegate the same authority to one House of Congress. Since the action of deciding
whether to deport a given alien is legislative, it is subject to both the bicameralism and
presentment requirements of Article 1 of the Constitution. Bicameralism and presentment
were built into the Constitution to act as a check on each branch and to protect the people
from the improvident exercise of power by mandating certain prescribed steps.
Dissent. Justice Byron White (J. White) found that the legislative veto in the Act is one
of approximately 200 statutes, in which Congress has reserved a "legislative veto" to
ensure accountability of the executive and independent agencies. J. White also argues that
the concept of a "legislative veto," is not the type of action that bicameralism and
presentment applies. Only bills and their equivalent are subject to bicameralism and
presentment. Here, Congress's initial delegation to the Attorney General of the
deportation decision was done with bicameralism and presentment. Thus, since Congress
did not write a new law when allowing one House of Congress to override the Attorney
General's decision, then bicameralism and presentment were not necessary. Concurrence.
Justice Lewis Powell (J. Powell) thought the case should have been decided on a
85 Immigration and Naturalization Services v. Jagdish Rai Chadha
narrower separation of powers ground. The House impermissibly assumed a judicial
function when reviewing the INS's decision over Chadha's deportation.
Discussion. Nearly every legislative act, in order to have force and effect must be
considered and passed by both houses of Congress and then presented to the President for
his signature. The framers of the Constitution found bicameralism and presentment to be
essential.
1 • A question to consider is whether Congress was taking "legislative"
action. The Act allows one house of Congress to deport an alien who
would otherwise be granted permanent residency. This is legislative in
character. However, Congress previously made a deliberate choice to
delegate authority to the executive branch to determine which deportable
aliens will be allowed to stay in the United States.
2 • The structure of the Constitution allows one house to make a unicameral
decision in only four instances, none of which are present here.
Bicameralism keeps the people free from the arbitrary exercise of
governmental power. The one-house legislative veto is unconstitutional.
86 Alexia Morrison, Independent Counsel v. Theodore B. Olson
Alexia Morrison, Independent Counsel v. Theodore B. Olson
Citation. 487 U.S. 654 (1988).
Brief Fact Summary. An Independent Counsel was appointed by the Special Division of
the D.C. Circuit Court of Appeals, to investigate a high-ranking government official. The
official responded by claiming that the appointment of an Independent Counsel was
unconstitutional.
Synopsis of Rule of Law. Since the Independent Counsel is an inferior officer, a law
giving judges the authority to appoint an Independent Counsel did not violate the United
Facts. The Ethics in Government Act (the Act) created the position of independent
counsel to investigate high-ranking officials for federal criminal violations. If the
Attorney General receives information that a government official may have violated
federal law, he is required by the Act to make a preliminary investigation and report to
the Special Division (three judges) of the D.C. Circuit Court of Appeals. If further
investigation is needed, the Special Division must appoint an independent counsel to
investigate further and prosecute if necessary. The Independent Counsel can only be
removed by the Attorney General for "good cause" or it terminates when all
investigations and prosecutions are complete. The Appellees, Theodore B. Olson, Edward
C. Schmults and Carol E. Dinkins (Defendants), was the subject of an investigation by
the Independent Counsel and Appellant, Alexia Morrison (Appellant). The Court of
Appeals held the Act was unconstitutional.
Issue. Does the Constitution require that the President of the United States (President)
exercise sole and exclusive control over the appointment of all executive officers?
Held. No. The President does not have exclusive authority to appoint executive officers.
Since the Petitioner is subject to removal by a higher executive branch official and since
her office is restricted in jurisdiction, tenure and authorized duties, it is clear that she is an
inferior officer and not a principle officer. On its face, the Appointments Clause of the
Constitution does not provide a limit on interbranch appointments. To the contrary,
Congress is granted great leeway when determining where to vest the power to appoint
inferior officials.
Dissent. Justice Antonin Scalia (J. Scalia) dissents because he feels criminal
investigations and prosecutions are executive functions. He feels the decision "deprives
the President of a purely executive function, thereby substantially affecting the balance of
powers."
Discussion. The Appointments Clause, Art II, § 2, cl. 2 of the Constitution, divides the
executive officers into (1) principle and (2) inferior officers. The President appoints
principle officers with advice and consent of the Senate, while the appointment of inferior
officers can be done by the heads of departments and the Courts. The Supreme Court of
87 Alexia Morrison, Independent Counsel v. Theodore B. Olson
the United States (Supreme Court) decided that the position of Independent Counsel is an
inferior officer because (1) he or she is always subject to removal by the President; (2) he
or she can only perform certain, limited duties proscribed by the Act; (3) the office is
limited in jurisdiction granted by the Special Division and (4) his or her office is limited
in tenure.
88 United States v. Curtiss-Wright Export Corp.
United States v. Curtiss-Wright Export Corp.
Citation. 299 U.S. 304 (1936).
Brief Fact Summary. The Defendant, Curtiss-Wright (Defendant), a weapons
manufacturer, was convicted of selling arms to warring nations in South America in
violation of an Executive Order that was made pursuant to a Joint Resolution of
Congress.
Synopsis of Rule of Law. The non-delegation doctrine does not bar Congress from
delegating great authority and discretion to the President of the United States (the
President) in the conduct of foreign affairs.
Facts. Congress passed a Joint Resolution authorizing the President to ban the sales of
arms to countries involved in the border dispute between Bolivia and Paraguay. The
President immediately made an Executive Order banning such sales. The Defendant was
indicted for conspiracy to sell fifteen machine guns to Bolivia in violation of the Joint
Resolution and the Executive Order.
Issue. May Congress delegate law-making authority to the President in matters of foreign
affairs?
Held. Yes, the President has broad authority to conduct foreign affairs.
Discussion. There is a fundamental difference in the role of government in foreign affairs
and domestic affairs. The federal government has both constitutional and inherent
authority to conduct foreign affairs as it sees fit. The President is the United States' sole
representative to foreign nations. In order to achieve the United States' foreign policy
aims, the President is better able than Congress to judge conditions that exist in foreign
nations and is afforded substantial discretion and wide latititude in those decisions. The
President has confidential information as well as consular, diplomatic and foreign affairs
officers to help in his decision.
89 Dames & Moore v. Regan, Secretary of the Treasury
Dames & Moore v. Regan, Secretary of the Treasury
Citation. 453 U.S. 654 (1981).
Brief Fact Summary. The President of the United States, Jimmy Carter (President
Carter), ordered the dismissal of pending litigation against the government of Iran in
United States Courts and forced the claims into arbitration pursuant to an "executive
agreement."
Synopsis of Rule of Law. The President of the United States has the power to settle
claims by United States Citizens against foreign governments, even without the consent
of the United States Citizens whose claims are being compromised.
Facts. On November 4, 1979, the United States Embassy in Iran and United States
diplomats were held hostage so President Carter froze all Iranian assets in the United
States. In January 1981, President Carter signed an executive agreement containing a
provision terminating all legal proceedings against the Iranian government in the United
States Courts and requiring United States citizens to arbitrate all claims against Iran.
President Carter did so under the International Emergency Economic Powers Act
(IEEPA). The Plaintiff, Dames and Moore (Plaintiff) brought suit claiming that the
executive agreement was unconstitutional and beyond the President's power.
Issue. Does the President of the United States have authority to settle claims of United
States citizens brought against foreign nations?
Held. Yes. An Executive Agreement has the same force and effect as a treaty and can
alter the rights of the United States Citizens. The President of the United States does not
have the plenary power to settle claims against foreign governments through an
Executive Agreement. However, where Congress is seen to assent to the president's
action, then the president can settle such claims. Here, although what President Carter did
under the IEEPA was not specifically sanctioned, Congress gave the president substantial
powers to seize and handle foreign assets, so President Carter's actions were appropriate.
Discussion. The President of the United States does have the right to terminate legal
proceedings and settle claims of United States Citizens against foreign governments. In
this country's history, there has been a longstanding practice of settling such claims by
executive agreement without the advice and consent of the Senate. In 1949, in fact,
Congress created a procedure to implement future settlement agreements. The Supreme
Court of the United States' decision was narrow in that the President of the United States
does not necessarily possess plenary power to settle claims. However, the President of the
United States does have the power to settle claims where, as in this case, settlement was
necessary to resolve a major foreign policy dispute and Congress has acquiesced in the
President's actions.
Case:Hamdi v. Rumsfeld 124 S.Ct. 2633 (2004)
Brief Fact Summary. The Petitioners, Yaser Esam Hamdi ("Mr. Hamdi") and his father
Esam Fouad Hamdi ("Petitioners"), filed a writ of habeus corpus opposing Mr. Hamdi's
indefinite detention by the United States as an enemy combatant.
Synopsis of Rule of Law. Pursuant to the narrow definition of enemy combatant
proffered by the government in this case, the government can hold an enemy combatant
for the duration of a conflict. However, due process demands that "a citizen held in the
United States as an enemy combatant be given a meaningful opportunity to contest the
factual basis for that detention before a neutral decisionmaker."
Facts. The Petitioners filed a writ of habeus corpus opposing Mr. Hamdi's indefinite
detention as an enemy combatant. No other substantive facts are offered in the opinion.
Issue.
1 • Whether the United States government can detain a United States citizen on
United States soil as an enemy combatant, when an enemy combatant is
narrowly defined as " ' part of or supporting forces hostile to the United States
or coalition partners' " in Afghanistan and who " 'engaged in an armed conflict
against the United States' " there?
2 • What is the appropriate means for an individual designated an enemy
combatant to challenge his classification as such?
Held.
1 • Justice O'Connor, ("J. O'Connor") writing for the Supreme Court of the
United States ("Supreme Court"), vacated and remanded the holding of the
United States Court of Appeals for the Fourth Circuit. The Fourth Circuit held
the Petitioner's detention was appropriate, and he was not entitled to challenge
his characterization as an enemy-combatant. Based on the narrow set of facts
offered by the government in this case, the government is allowed to hold the
petitioner pursuant to the Authorization of Use of Military Force ("AUMF"),
an Act of Congress. The AUMF authorizes the President to "use all necessary
and appropriate force" against "nations, organizations or persons" associated
with the September 11, 2001 terrorist attacks. The Supreme Court concluded,
"detention of individuals falling into the limited category we are considering,
for the duration of the particular conflict in which they were captured, is so
fundamental and accepted an incident to war as to be an exercise of the
'necessary and appropriate force' Congress has authorized the President to
use." Relying on [Quiren], J. O'Connor observed nothing prevented the
United States government from holding a United States
91 Hamdi v. Rumsfeld
1 citizen as an enemy combatant. Additionally, J. O'Connor distinguished
[Milligan], by pointing to the fact Milligan was not a prisoner of war.
2 • Absent suspension, the writ of habeus corpus (the "writ") is available to all
United States' citizens. The writ is an important check on the Executive,
ensuring individuals are only detained according to the law. Since the writ
was not suspended here, the Petitioner is properly before an Article III court
under 28 U.S.C. §2241. The habeus determination cannot be made solely as a
matter of law, without further hearing or factfinding, despite the fact Mr.
Hamdi was detained in a combat zone. Thus, Mr. Hamdi is entitled to further
process. J. O'Connor refers to the [Mathews v. Eldridge] balancing test, which
weighs "the private interest that will be affected by the official action" against
the Government's asserted interest, "including the function involved" and the
"burdens the Government would face in providing greater process" J.
O'Connor recognizes important interests on both sides. First, Mr. Hamdi's
interest in "being free from physical detention by one's own government."
Second, the government's interest in ensuring that those who fought against
the United States do not return to battle against the United States. The
majority then held: "a citizen-detainee seeking to challenge his classification
as an enemy combatant must receive notice of the factual basis for his
classification, and a fair opportunity to rebut the Government's factual
assertions before a neutral decisionmaker." However, the Supreme Court then
made certain allowance to account for "the exigencies of the circumstances."
Dissent.
1 • Justice Antonin Scalia ("J. Scalia") and Justice John Paul Stevens ("J.
Stevens") dissent and argue the "[t]he proposition that the Executive lacks
indefinite wartime detention authority over citizens is consistent with the
Founders' general mistrust of military power permanently at the Executive's
disposal." As such, the Petitioner is entitled to "a habeas decree requiring his
release unless (1) criminal proceedings are promptly brought, or (2) Congress
has suspended the writ of habeas corpus." The justices also argue only
Congress can "authorize suspension of the writ."
2 • Justice Clarence Thomas ("J. Thomas") also dissented. J. Thomas argues Mr.
Hamdi's "detention falls squarely within the Federal Government's war
powers, and [the Supreme Court] lacks the expertise and capacity to second-
guess that decision." Additionally:
[t]he Government's asserted authority to detain an individual that the President

has determined to be an enemy combatant, at least while hostilities continue,
comports with the Due Process Clause …. [T]he Executive's decision that a
detention is necessary to protect the public need not and should not be subjected
to judicial second-guessing…. [A]t least in the context of enemy-combatant
determinations, this would defeat
92 Hamdi v. Rumsfeld
the unity, secrecy, and dispatch that the Founders believed to be so important to
the warmaking function.
1 • Justice David Souter (J. Souter) and Justice Ruth Bader Ginsburg (J.
Ginsburg) concurred in part and dissented in part. The justices stated, "[t]he
Government has failed to demonstrate that the Force Resolution authorizes the
detention complained of here even on the facts the Government claims." The
justices stressed the balance of powers inherent in American government, and
the constant tension between "security and liberty." Also, how the Executive
who is charged with the security of the nation should not be the one to have
the final say in issues regarding liberty, like the detention or imprisonment of
Mr. Hamdi. Meaning, Congress should make an assessment before a citizen is
subject to lockup in this sort of situation.
Discussion. J. O'Connor makes a very interesting observation that permeates must of

constitutional law. She states:
[s]triking the proper constitutional balance here is of great importance to the Nation
during this period of ongoing combat. But it is equally vital that our calculus not give
short shrift to the values that this country holds dear or to the privilege that is American
citizenship. It is during our most challenging and uncertain moments that our Nation's
commitment to due process is most severely tested; and it is in those times that we must
preserve our commitment at home to the principles for which we fight abroad.
Relying on [Youngstown Sheet & Tube] J. O'Connor rejected the governments assertion
that separation of powers principles mandate a heavily circumscribed role for the courts
in such circumstances. Indeed, the position that the courts must forgo any examination of
the individual case and focus exclusively on the legality of the broader detention scheme
cannot be mandated by any reasonable view of separation of powers, as this approach
serves only to condense power into a single branch of government. We have long since
made clear that a state of war is not a blank check for the President when it comes to the
rights of the Nation's citizens.
The court continued, "[w]hatever power the United States Constitution envisions for the
Executive in its exchanges with other nations or with enemy organizations in times of
conflict, it most assuredly envisions a role for all three branches when individual liberties
are at stake."
93 Richard Nixon v. A. Ernest Fitzgerald
Richard Nixon v. A. Ernest Fitzgerald
Citation. 457 U.S. 731 (1982).
Brief Fact Summary. A cost-management expert for the Air Force was fired after he
testified in front of Congress about cost overruns in certain military projects. The
Defendant, the President of the United States Richard Nixon (Defendant), claimed that he
made the firing decision.
Synopsis of Rule of Law. The President of the United States (President) is shielded by
absolute immunity from civil damages for acts done in his official capacity as President.
Facts. The Plaintiff, Ernest Fitzgerald (Plaintiff), was fired from his job with the Air
Force as cost-management analyst because he embarrassed his superiors by testifying
about certain cost-overruns. The Air Force said he was fired because of reorganization
and a reduction in force. An internal memo was passed through White House staff saying
the Plaintiff was a "top notch cost expert" but with "very low marks of loyalty" and
recommended that they "let him bleed." At a press conference, the Defendant said he
personally made the decision to fire the Plaintiff. The White House later retracted the
statement saying that the Defendant had confused the Plaintiff with another employee.
The Plaintiff brought suit and the Defendant moved for summary judgment on the ground
of absolute immunity from suit.
Issue. Does the President have absolute immunity from suit for actions taken in his
official capacity?
Held. Yes, the President is immune from suit from his official acts as a matter of public
policy rooted in the structure of government mandated by the separation of power
principle. This immunity stems from the President's unique position in the constitution
scheme and the immense importance of his duties. The Supreme Court of the United
States (Supreme Court) is worried about diverting the President's energies to the concerns
related to private lawsuits.
Dissent. Justice Byron White (J. White) felt that this decision places the President above
the law.
Discussion. The President must be empowered with the maximum ability to deal
fearlessly and impartially with the duties of his office. If not, his visibility would subject
him to numerous suits for civil damages. To keep the public safe, there is the
constitutional remedy of impeachment, vigilant oversight by Congress and the press.
94 William Jefferson Clinton v. Paula Corbin Jones
William Jefferson Clinton v. Paula Corbin Jones
Citation. 520 U.S. 681 (1997).
Brief Fact Summary. The Defendant, the President of the United States William Clinton
(Defendant) was accused of sexually harassing the Plaintiff, Paula Jones (Plaintiff), while
he was Governor of Arkansas. The Defendant sought to postpone the proceeding of a
civil lawsuit until after he left office.
Synopsis of Rule of Law. A sitting President does not enjoy temporary immunity from
all civil suits until he has left office.
Facts. In 1994, the Plaintiff filed suit against the Defendant regarding sexual advances
(in a hotel), which occurred while the Defendant was Governor of Arkansas in 1991. The
Defendant was a speaker at the conference and the Plaintiff was a state employee
working at the reception desk. The Plaintiff claims she was summoned by a state trooper
to the Defendant's suite where he made sexual advances towards her that she rejected. As
a result, her supervisors were hostile and rude to her and her duties were changed to
punish her for rejecting those advances. The Plaintiff filed suit seeking actual and
punitive damages.
Issue. Does the President have immunity from all suits against him while he occupies the
office?
Held. No, a sitting President is not immune from suit for unofficial acts. The separation
of powers doctrine does not require federal courts to stay all private actions against the
president until he leaves office. The Supreme Court of the United States (Supreme Court)
distinguishes this matter from a situation where a public official is sued based on some
sort of official action taken. In the latter situation the public official is generally granted
immunity. The Defendant's Separation of Powers argument fails because there is no
indication that the judiciary is being asked to perform any function that might in some
way be described as executive, or that this decision will curtail the scope of official
powers of the Executive Branch. Moreover, the Supreme Court observed that this
decision would not result in a deluge of private litigation against sitting presidents.
Discussion. Although the Defendant claims that in all but the most exceptional cases, the
United States Constitution (Constitution) affords the President temporary immunity from
civil damages litigation arising out of events that took place before he took office, it is
not the case. The Defendant's argument rests on neither history nor precedent.
95
CHAPTER IV. Limits On

State Regulatory And
Taxing Power
96 Lorillard Tobacco Co. v. Reilly
Lorillard Tobacco Co. v. Reilly
Citation. 533 U.S. 525 (2001)
Brief Fact Summary. Massachusetts placed restrictions on various tobacco related
advertising.
Synopsis of Rule of Law. The [Central Hudson Gas & Electric Corp. v. Public Service
Commission of New York] analysis involves four elements: "At the outset, we must
determine whether the expression is protected by the First Amendment. For commercial
speech to come within that provision, it at least must concern lawful activity and not be
misleading. Next, we ask whether the asserted governmental interest is substantial. If
both inquiries yield positive answers, we must determine whether the regulation directly
advances the governmental interest asserted, and whether it is not more extensive than is
necessary to serve that interest."
Facts. The state of Massachusetts passed certain regulations banning the advertising of
smokeless tobacco products and cigars. Federal law regulates cigarette advertising so that
is not at issue here.
Issue. Does Massachusetts' statutory scheme violate the Supreme Court of the United
States' regulations of commercial speech?
Held. Yes. Justice Sandra Day O'Connor ("J. O'Connor") writing for the majority begins
by laying out its framework for analyzing commercial speech under [Central Hudson].
The analysis involves four elements: "At the outset, we must determine whether the
expression is protected by the First Amendment. For commercial speech to come within
that provision, it at least must concern lawful activity and not be misleading. Next, we
ask whether the asserted governmental interest is substantial. If both inquiries yield
positive answers, we must determine whether the regulation directly advances the
governmental interest asserted, and whether it is not more extensive than is necessary to
serve that interest."
1 • The court recognizes that only the last two factors are applicable here. The
third factor "concerns the relationship between the harm that underlies the
State's interest and the means identified by the State to advance that interest. It
requires that 'the speech restriction directly and materially advanc[e] the
asserted governmental interest. 'This burden is not satisfied by mere
speculation or conjecture; rather, a governmental body seeking to sustain a
restriction on commercial speech must demonstrate that the harms it recites
are real and that its restriction will in fact alleviate them to a material degree.'
" The fourth step requires "asking whether the speech restriction is not more
extensive than necessary to serve the interests that support it." The restriction
need not be "the least restrictive means", but instead a reasonable " 'fit
between the legislature's ends and the means chosen to accomplish those ends,
... a means narrowly tailored to achieve the desired objective.' "
1 • As to the third factor, J. O'Connor observed that the Food and Drug
Administration found "[t]he recent and very large increase in the use of
smokeless tobacco products by young people and the addictive nature of these
products has persuaded the agency that these products must be included in any
regulatory approach that is designed to help prevent future generations of
young people from becoming addicted to nicotine-containing tobacco
products." The court made similar observations about the underage use of
cigars. Additionally, the majority "disagree[d] with petitioners' claim that
there is no evidence that preventing targeted campaigns and limiting youth
exposure to advertising will decrease underage use of smokeless tobacco and
cigars." J. O'Connor concluded "[o]ur review of the record reveals that the
Attorney General has provided ample documentation of the problem with
underage use of smokeless tobacco and cigars."
2 • J. O'Connor argued, however, that the regulation did not satisfy the fourth
prong of the [Hudson] test. The court observed, "[t]he broad sweep of the
regulations indicates that the Attorney General did not 'carefully calculat[e]
the costs and benefits associated with the burden on speech imposed' by the
regulations." The Supreme Court criticized the substantial geographical reach
of the regulations, the fact that outdoor advertising included advertising
visible from outside a store and the fact that advertisements of any size are
banned. The effect would be that "[i]n some geographical areas, these
regulations would constitute nearly a complete ban on the communication of
truthful information about smokeless tobacco and cigars to adult consumers."
3 • J. O'Connor concluded "that the Attorney General has failed to show that the
outdoor advertising regulations for smokeless tobacco and cigars are not more
extensive than necessary to advance the State's substantial interest in
preventing underage tobacco use."
Dissent. Justice John Paul Stevens ("J. Stevens") filed an opinion joined by Justice Ruth
Bader Ginsburg ("J. Ginsburg") and Justice William Breyer ("J. Breyer"), concurring and
dissenting in part. J. Stevens discusses how statutes restricting speech can be invalid for
two different reasons. "First, the means chosen may be insufficiently related to the ends
they purportedly serve." "Second, statute[s] may be so broadly drawn that, while
effectively achieving its ends, it unduly restricts communications that are unrelated to its
policy aims."
Concurrence. Judge Clarence Thomas ("J. Thomas") filed an opinion concurring in part
and concurring in the judgment. J. Thomas states "I join the opinion of the Court, [but] I
continue to believe that when the government seeks to restrict truthful speech in order to
suppress the ideas it conveys, strict scrutiny is appropriate, whether or not the speech in
question may be characterized as 'commercial.' " As such, J. Thomas would "subject all
of the advertising restrictions to strict scrutiny and would hold that they violate the First
Amendment."
Discussion. This case offers a very good example of how the [Central Hudson] factors
are applied.
99 Florida Lime & Avocado Growers, Inc v. Paul, Director, Department of Agriculture of California
Florida Lime & Avocado Growers, Inc v. Paul, Director, Department of
Agriculture of California
Citation. 373 U.S. 132 (1963).
Brief Fact Summary. A California avocado oil law differed from a Federal avocado law.
Florida Lime and Avocado Farmers sued because of the stricter California law precluded
them from the Florida markets.
Synopsis of Rule of Law. When a state and federal law exist with different standards, as
long as they can coexist, the Supreme Court of the United States (Supreme Court) will
not decide which one preempts the other one.
Facts. Section 792 of California's Agricultural Code, which gauges the maturity of
avocados by oil content, prohibits the transportation or sale in California of avocados
which contain "less than 8% of oil, by weight excluding the skin and seed." In contrast,
Federal marketing orders approved by the Secretary of Agriculture gauge the maturity of
avocados grown in Florida by standards, which attribute no significance to the oil
content. Therefore, California markets certain Florida avocados which although mature
under Federal law do not satisfy California's requirement of 8% oil. The Appellants, the
Florida Lime & Avocado Growers Inc. (Appellants), challenge the California law under
the Supremacy Clause of the United States Constitution (Constitution).
Issue. When a state statute is different than a federal statute, which should apply?
Held. It does not matter because the two laws can co-exist.
Discussion. There is no need to look into Congressional intent if "compliance with both
federal and state regulations is a physical impossibility for one engaged in interstate
commerce." There is no present record, which demonstrates an inevitable collision
between the two schemes of regulation, despite the dissimilarity of the standards.
100 Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission
Pacific Gas & Electric Co. v. State Energy Resources Conservation &
Development Commission
Citation. 461 U.S. 190 (1983).
Brief Fact Summary. Federal law that governed the regulation of safety aspects
concerning nuclear power plants, did not preempt state law, which effectively placed a
moratorium on construction of nuclear power plants within the state.
Synopsis of Rule of Law. State law is preempted if it stands as an obstacle to the
accomplishment of the full purposes and objectives of Congress. However, the Supreme
Court of the United States (Supreme Court) will not interfere where there is a permissible
and good basis for the state law.
Facts. California adopted a law that imposed a moratorium on the certification of nuclear
energy plant, until it demonstrated technology or a means of disposal for high-level
nuclear waste. The Plaintiff, Pacific Gas & Electric Co. (Plaintiff) sued the Defendant,
California's State Energy Resources Conservation & Development Commission
(Defendant) and asserted that state law was preempted by the Federal Atomic Energy Act
of 1954 (the Act), and was therefore invalid under the Supremacy Clause of the United
Issue. Will a state law be preempted if it stands as an obstacle to the accomplishment of
the full purposes and objectives of Congress?
Held. Yes, a state law placing a moratorium on construction of nuclear power plants does
not impede federal law's objectives of developing nuclear energy.
Discussion. The Plaintiff contends that the moratorium provision of California's law is
preempted by the Act on three grounds. First, it regulates nuclear plant construction
allegedly predicated on safety concerns and thus falls within a field controlled by the
federal government. Second, it conflicts with decisions concerning nuclear waste disposal
made by Congress. Third, it frustrates the goal of developing nuclear technology as a
source of energy. As to the first ground, Congress intended the federal government to
have authority to regulate safety with nuclear technology, but that the states retain their
traditional responsibility in the field of regulating electrical utilities for determining
questions of need, cost and other state concerns. The California state law is not
preempted on this ground because it is based on safety and not economics. As to the
second ground, the state law does not conflict with federal rulings and regulations, which
are aimed at ensuring they are safe. With regard to the third and final ground, the primary
purpose of the Act was to promote nuclear power, but that is not supposed to be
accomplished "at all costs." The state law is not preempted.
101 Hines, Secretary of Labor ad Industry of Pennsylvania v. Davidowitz
Hines, Secretary of Labor ad Industry of Pennsylvania v. Davidowitz
Citation. 312 U.S. 52 (1941).
Brief Fact Summary. A state alien registration law was challenged on the ground that
the federal alien registration law occupied the field and therefore preempted the state law.
Synopsis of Rule of Law. If the federal government exercises superior authority in a
particular field and enacts a complete system of regulation, states cannot enact laws
which conflict/interfere/curtail or complement, the federal law, or even enforce additional
or auxiliary regulations.
Facts. In 1939 Pennsylvania passed an Alien Registration Act (the state Act), which
required aliens to register annually, provide information and carry a registration card to
be shown to police, or they would be criminally prosecuted. The next year, the Federal
Alien Registration Act (the Federal Act) provided for a single registration and they did
not have to carry a registration card. The Appellees, Davidowitz and other aliens
(Appellees), challenged the law as denying equal protection to aliens, and on other
constitutional grounds. A federal district court enjoined the enforcement of the state Act.
Issue. If the Federal government has exercised superior authority in a particular field can
the states enact laws which conflict or interfere with, curtail or complement, the federal
law, or enforce additional or auxiliary regulation?
Held. No. The Supreme Court of the United States (Supreme Court) declares that
Congress intended for federal government to occupy the field of immigration regulation
and not the states.
Dissent. Justice Harlan Fiske Stone (J. Stone) did not think Congress made a complete
and exclusive registration system for aliens. He felt that the Supreme Court cannot strike
down a state law that was immediately concerned with social order and safety of its
people.
Discussion. The federal government has the power over immigration, naturalization and
deportation. When the federal government provides a complete standard for the
registration of aliens, the states cannot conflict or interfere with, or enforce additional
regulations. Congress wanted one uniform national system.
102 H.P. Hood & Sons, Inc v. Du Mond, Commissioner of Agriculture and Markets of New York
H.P. Hood & Sons, Inc v. Du Mond, Commissioner of Agriculture and
Markets of New York
Citation. 336 U.S. 529 (1939).
Brief Fact Summary. The Defendant, DuMond the Commissioner of Agriculture and
Markets of New York (Defendant) denied the Plaintiff, H.P. Hood & Sons, Inc.
(Plaintiff), a Boston milk distributor, a license to build a new milk facility. The Plaintiff
challenged the denial based on the dormant commerce clause.
Synopsis of Rule of Law. States may not enact laws that burden the exportation of local
products in order to protect and advance local economic interests.
Facts. The Plaintiff was a Boston distributor of milk who received milk from three New
York plants. The Plaintiff wanted to build a fourth plant in New York, but the Defendant
would not allow it and denied the Plaintiff a license for the new plant on the grounds that
the issuance of the license would tend to destroy competition in a market already
adequately served. Moreover, the Defendant stated that the creation of the fourth plant
would draw milk supplies away from other existing processing plants and would tend to
deprive the local market of an adequate supply of milk. The Plaintiff challenged using the
Dormant Commerce Clause.
Issue. May a state deny a license for a new plant to acquire and ship milk in interstate
commerce on the grounds that such limitations on interstate business will protect and
advance local economic interests?
Held. No, New York's embargo was invalidated based upon the dormant commerce
clause. Restrictions, which have the purpose and effect of curtailing the volume of
interstate commerce to aid local economic interests will not be sustained.
Discussion. The Supreme Court of the United States (Supreme Court) held that a state
may not enact laws that burden the exportation of local products in order to protect and
advance local economic interests. A state may not promote its own economic advantages
by the curtailment or burdening of interstate commerce. The Supreme Court in Baldwin
v. G.A.F. Seeling Inc stated "Our system fostered by the Commerce Clause, is that every
farmer and every craftsperson shall be encouraged to produce by the certainty of free
access to every market in the nation, that no home embargoes will withhold exports and
no other state will, by customs duties or regulations, exclude them. Such was the vision
of the founders; such has been the doctrine of this court which has given it reality."
103 Aaron B. Cooley v. Board of Wardens of the Port of Philadelphia
Aaron B. Cooley v. Board of Wardens of the Port of Philadelphia
Citation. 53 U.S. (12 How.) 299 (1851).
Brief Fact Summary. A state law required ships to hire local pilots to guide them
through the Port of Philadelphia, or to pay a fine.
Synopsis of Rule of Law. The Congressional power to regulate commerce is not
exclusive of all state powers to regulate commerce.
Facts. In 1803, Pennsylvania enacted a law requiring ships entering the Port of
Philadelphia (the Port) hire a local pilot to guide them through the Port or pay a fine. The
fine was to be paid to the Plaintiff, the Board of Wardens of the Port of Philadelphia
(Plaintiff). The Defendant, Aaron B. Cooley Cooley (Defendant), challenged the law's
constitutionality, contending that the Commerce Clause's provision that Congress could
regulate commerce gave them exclusive jurisdiction over commerce and not the states.
The Defendant was a consignee of two ships that left port without a local pilot and were
found liable under the law. The Plaintiff relied on a 1789 Act of Congress (the Act),
which in substance stated that the states could regulate all pilots in the rivers, harbors,
and ports until the Congress enacted legislation to the contrary.
Issue. Is the Congressional power to regulate commerce exclusive of all state powers to
regulate commerce?
Held. No, the Supreme Court of the United States (Supreme Court) established the
"Selective Exclusiveness Test" for judicial review of state regulation of commerce. The
Supreme Court declared that states had the power to regulate the areas of commerce that
were local nature. Those, which did not require uniform national regulation by Congress.
The Court observed that by passing the Act, Congress recognized that the states would
have certain powers to effect interstate commerce. The Supreme Court observed that the
regulation of pilots was local in nature and did not require one uniform rule. Thus,
Congress is not given absolute power in this area. The Court also held that the grant of
the Commerce power to Congress did not preclude the states from exercising any power
over commerce. To the contrary, only when Congress acts to exercise its Commerce
power is a state's exercise of that same power affected. The Supreme Court also limited
its decision to the facts before it and did not attempt to discern all the activities that were
primary local and primary national.
Discussion. The Supreme Court felt that the law was appropriate. Other states have made
similar regulations. It was a fair exercise of legislative discretion.
104 South Carolina State Highway Department v. Barnwell Brothers, Inc.
South Carolina State Highway Department v. Barnwell Brothers, Inc.
Citation. 303 U.S. 177 (1938).
Brief Fact Summary. The Plaintiff, Barnwell Brothers, Inc. (Plaintiff) challenged a state
law prohibiting the operation of trucks on state highways as an unconstitutional burden
on interstate commerce.
Synopsis of Rule of Law. A state law placing width and weight limitations on trucks
operating on state highways does not impose an unconstitutional burden on interstate
commerce so as to violate the United States Constitution's (Constitution) Commerce
Clause.
Facts. South Carolina passed a law that prohibited trucks of a certain weight and width to
use their state highways. Specifically, trucks could not use South Carolina's highways if
their width exceeded 90 inches and if their total weight exceeded 20,000 pounds. The
Plaintiff challenged the state law as an unconstitutional burden on interstate commerce, in
violation of the Constitution's commerce clause. The district court enjoined enforcement
of these regulations, determining that they would seriously impede motor truck traffic
passing to and through the state and would increase its cost.
Issue. Does a state law imposing restrictions on weight and width of trucks that use state
roads violate the Constitution's commerce clause?
Held. No, state regulations limiting width and weight of trucks operated on state
highways does not violate the Constitution's commerce clause. The Supreme Court of the
United States (Supreme Court) first pointed out that Congress decided not to regulate the
weight and width of motor vehicles and left that power to the States. The Supreme Court
also recognized that South Carolina had a great local concern in passing its regulations.
Further, since South Carolina's regulations were nondiscriminatory, they were
appropriate.
Discussion. The state has a primary and immediate concern in taking care of their
highways. The state may impose nondiscriminatory restrictions with respect to the
character of motor vehicles moving in interstate commerce as a safety measure and as a
means of securing the economical use of its highways. The regulatory measures taken by
South Carolina are within its legislative power and they do not violate the Constitution's
commerce clause.
105 Southern Pacific Co. v. Arizona
Southern Pacific Co. v. Arizona
Citation. 325 U.S. 761 (1945).
Brief Fact Summary. The Plaintiff, the state of Arizona (Plaintiff), created a law
limiting the number of railroad cars per trains as a safety measure. The Defendant, the
Southern Pacific Co. (Defendant) asserted that the law violated the United States
Constitution's (Constitution) Commerce Clause.
Synopsis of Rule of Law. In deciding whether a state law - created for its safety
measures - violates the Constitution's Commerce Clause, the Supreme Court of the
United States (Supreme Court) will balance the benefit of the law against the burden it
imposes on interstate commerce.
Facts. The Arizona Train Limit Law of 1912 (the Law), prohibited the operations of
trains of more than 14 passengers or 70 freight cars and authorized he state to recover a
money penalty for each violation. The trial court found for the Defendant and the state
supreme court reversed. The state supreme court believed that the statute was enacted
within the state's police power and that it bore a reasonable relation to the health, safety
and well-being of the states people. This finding was irrespective of the statute's effect on
interstate commerce.
Issue. Are the benefits of a state law safety measure limiting the length of trains
outweighed by burdens on interstate commerce?
Held. Yes, a state law that puts a significant burden on interstate commerce, yet provides
no real improvement in safety, will be found to violate the Constitution's Commerce
Clause. The Supreme Court determined that the usage of trains with greater than 14
passenger cars and more than 70 freight cars is standard practice on many United States
railroads. If train length was to be regulation, national uniformity in regulation, such as
only Congress can impose, is "practically indispensable to the operation off an efficient
and economic national railway system." The Supreme Court also determined that the Law
imposed a serious burden on interstate commerce. Also, the Law does not provide any
actual safety benefits and in actuality makes train operation more dangerous. The
Supreme Court also distinguishes this case from South Carolina v. Barnwell, 303 U.S.
177 (1978), which dealt with the regulation of the highways.
Discussion. The Supreme Court must determine the nature and extent of the burden
which the state regulation of interstate trains, adopted as a safety measure, imposes on
interstate commerce. The Supreme Court also must determine whether the relative
weights of the state and national interests involved are such as to make inapplicable the
rule that the free flow of interstate commerce and its freedom from local restraints in
matters requiring uniformity of regulation are interests safeguarded by the Constitution's
Commerce Clause from state interference. If the length of trains were to be regulated, it
should be done by Congress and not individual states. Arizona's law greatly burdens the
106 Southern Pacific Co. v. Arizona
Defendant because they have to haul over 30% more trains through Arizona than other
unregulated states.
107 City of Philadelphia v. New Jersey
City of Philadelphia v. New Jersey
Citation. 437 U.S. 617.
Brief Fact Summary. The Supreme Court of the United States (Supreme Court) held
that a Defendant, state of New Jersey (Defendant) statute, which prohibited other states
from disposing of solid and liquid waste in New Jersey, violated the Commerce Clause of
the United States Constitution (Constitution).
Synopsis of Rule of Law. State laws, which regulate commercial activity, may not favor
in-state interests over out-of-state interests.
Facts. The Defendant state passed a state statute prohibiting the importation of most
"solid or liquid waste which originated or was collected outside the territorial limits of
the state…" until the State Commissioner determined that it could be imported without
endangering the public health, safety and welfare. The Plaintiff, the City of Philadelphia
(Plaintiff) challenged the statute on the grounds that it violated the Commerce Clause of
the Constitution and the "valueless" waste is not entitled to constitutional protection. The
trial court held that the statute unduly burdened interstate commerce because it
discriminated against out of state products. The Supreme Court of New Jersey reversed
and held that the law advanced legitimate health and safety concerns, which counteracted
the burden on interstate commerce.
Issue. Is it a violation of the Commerce Clause for one state to prohibit others from
selling and transporting legitimate articles of commerce within its borders?
Held. Yes, the New Jersey statute prohibiting out-of-state waste disposal in New Jersey
landfills violates the commerce clause because it unduly burdens interstate commerce.
Protectionist state laws are unconstitutional because they unduly burden commerce.
Although a state may argue that its goal is to protect the health and safety of its citizens
this goal may not be reached by discriminating against articles of commerce from other
states. A state can discriminate, but not based geographic origin of the goods. The statute
treats inherently similar products differently solely due to where they originated.
Dissent. Justice William Rehnquist (J. Rehnquist) dissented because he thinks New
Jersey should be able to prohibit the importation of solid waste for reasons of health and
safety. Just because they have waste of their own, does not mean they should have to take
everyone else's waste too.
Discussion. All objects of trade deserve protection of the Commerce Clause, including
waste. The Supreme Court holds that the statute on its face and in effect, violates the
principle of nondiscrimination.
108 C & A Carbone, Inc. v. Town of Clarkstown, New York
C & A Carbone, Inc. v. Town of Clarkstown, New York
Citation. 511 U.S. 383 (1994).
Brief Fact Summary. A local ordinance, which required all waste to be processed at a
local waste transfer facility before leaving town, was challenged as violating the
Commerce Clause of the United States Constitution (Constitution).
Synopsis of Rule of Law. State and Local governments may not enact laws that favor
enterprise by prohibiting patronage of out-of-state competitors or their facilities.
Facts. The Plaintiff, the Town of Clarkstown, New York (Plaintiff), entered into a
consent decree with the state of New York to close its landfill and build a new solid
waste transfer station on the site. In order to finance the waste transfer station, the
Plaintiff adopted an ordinance requiring all non-hazardous solid waste generated or
brought into the town to be processed at the transfer station for a fee above market price.
Violators would be punished through fines or jail time. The Defendant, C & A Carbone,
Inc. (Defendant), a company that processed waste, did not process their waste at the local
station more than six times. The Plaintiff town sought an injunction to force the
Defendant to comply with the town ordinance. The state courts rejected the Defendant's
argument that the ordinance violated the commerce clause.
Issue. May state and local governments enact laws that favor local enterprise by
prohibiting patronage of out of state competitors of their facilities?
Held. No, the local ordinance requiring all wastes to be processed at the local transfer
station violates the Commerce Clause.
Dissent. Justice David Souter (J. Souter) dissents because the difference between the
local ordinance here and in other cases is that this law does not differentiate between all
local and out of town providers, but instead the one entity responsible that the job gets
done and all other entities regardless of their location. The measure falls outside the class
of measures that the Commerce Clause has barred States from enacting against each
other. He felt the majority was greatly extending the Dormant Commerce Clause.
Discussion. The Supreme Court of the United States (Supreme Court) held that state and
local governments may not enact laws that favor local enterprises by prohibiting
patronage of out of state competitors or their facilities. With respect to the stream of
commerce the ordinance discriminates, for it allows only the favored operator to process
waste that is within the limits of the town. This law bars the import of the processing
service. It squelches competition in the waste-processing service altogether, leaving no
room for investment from the outside. Because the ordinance attains its financial goal by
depriving competitors, including out of state firms, of access to a local market, it violates
the Commerce Clause of the Constitution.
109 Hughes v. Oklahoma
Hughes v. Oklahoma
Citation. 441 U.S. 322 (1979).
Brief Fact Summary. A state law that prohibited the transportation of minnows outside
the state violated the Commerce Clause of the United States Constitution (Constitution).
Synopsis of Rule of Law. It is a violation of the Commerce Clause for states to enact
laws that attempt to conserve natural resources for use by their own residents.
Facts. The Plaintiff, Oklahoma (Plaintiff) enacted a statute that provided "no person may
transport to ship minnows for the sale outside the State which were seined or procured
within the waters of this State." The Defendant, William Hughes (Defendant) who
operated a Texas commercial minnow business, challenged the law because it violated
the Commerce Clause of the Constitution.
Issue. Did the Plaintiff's law violate the Commerce Clause?
Held. Yes, the Plaintiff's law prohibiting the taking of minnows for sale outside the state
violates the Commerce Clause of the Constitution. The Supreme Court of the United
States (Supreme Court) disregarded the rule that a state owns all the wildlife within it and
has the right to qualify ownership. Now, a state's regulation of wild animals should be
analyzed in the same manner as a state's regulation of natural resources. The rule requires
inquiries into (1) whether the statute regulates evenhandedly or discriminates against
interstate commerce; (2) whether it serves a legitimate local purpose and (3) whether
alternative means could promote the local purpose as well without discriminating against
interstate commerce. The Supreme Court determined that the state's legitimate interest in
conservation was not advanced by the least discriminatory means possible.
Discussion. The statute overtly blocks the flow of interstate commerce at the State's
border, on its face.
110 Hunt, Governor of the State of North Carolina v. Washington State Apple Advertising Commission
Hunt, Governor of the State of North Carolina v. Washington State
Apple Advertising Commission
Brief Fact Summary. A North Carolina law was challenged by the Plaintiff, the
Washington State Apple Advertising Commission (Plaintiff), on the ground that it had a
discriminatory impact, which caused it to violate the Commerce Clause of the United
Synopsis of Rule of Law. A facially neutral state law is unconstitutional and violates the
Commerce Clause if it has a discriminatory effect on interstate commerce.
Facts. The Defendant, North Carolina (Defendant), enacted a statute requiring all closed
apple containers to bear "no grade other than an applicable U.S. grade," which is set by
the United States Department of Agriculture (USDA). The State of Washington (a huge
apple-producing state) had a different grading system, which was superior to the quality
set by the USDA. The Plaintiff challenged the statutes' constitutionality contending it
burdened interstate commerce by altering Washington apples when they got to North
Carolina. North Carolina defended their statute asserting they were trying to prevent
apple fraud. A district court agreed with the Plaintiff.
Issue. Can a facially neutral state law be unconstitutional and in violation of the
Commerce Clause if it has a discriminatory effect on interstate commerce?
Held. Yes, if a state law has a discriminatory impact, even if it is neutral on its face, it
violates the Commerce Clause.
Discussion. The statute raises the cost of selling apples in North Carolina, except for
North Carolina apple growers. The Washington system is expensive and the industry is
competitive, more so than North Carolina's. By prohibiting Washington apples from
marketing apple's under their state's grades, it has a leveling affect, which is unfairly
economically advantageous to local apple growers in North Carolina. Because the
Washington grade is known for being superior, the Supreme Court of the United States
(Supreme Court) contends that North Carolina evened the playing field unfairly and in
violation of the Commerce Clause.
111 Exxon Corporation v. Governor of Maryland
Exxon Corporation v. Governor of Maryland
Citation. 437 U.S. 117 (1978).
Brief Fact Summary. A Maryland law, prohibiting petroleum producers and refiners
from operating gas stations within the state, did not violate the commerce clause.
Synopsis of Rule of Law. A state law that causes some business to shift from one
interstate supplier to another does not impermissibly burden interstate commerce.
Facts. The Plaintiffs, Exxon Corporation and other oil refiners (Plaintiffs), sell petroleum
to independent retailers in Maryland. The state of Maryland passed a law prohibiting
producers and refiners of petroleum products from operating retail gas stations within the
state to correct inequities in the pricing. There were no virtually no petroleum producers
and refiners in Maryland. The effect of this law was to force various companies to divest
themselves of their Maryland gas stations. Moreover, the producers and refiners could not
directly sell their product in Maryland. Those effected by the law were predominantly
out-of-state producers. The Plaintiffs challenged the law, arguing it had a discriminatory
effect and that violated the Commerce Clause because it impermissibly burdened
interstate commerce. At trial, the Plaintiffs prevailed on due process grounds. However,
the Maryland Court of Appeals reversed, upholding the law against the Plaintiffs.
Issue. Did Maryland's law impermissibly burden interstate commerce so as to violate the
Commerce Clause?
Held. No, the state law prohibiting oil companies from operating gas stations was upheld
even though those affected were mostly out of state oil companies. The statute creates no
barrier against interstate independent dealers, nor does it prohibit the flow of interstate
goods, place added costs upon them, or distinguish between in-state and out-of-state
companies in the retail market. Interstate commerce is not subjected to an impermissible
burden simply because an otherwise valid regulation causes some business to shift from
one interstate supplier to another. The Commerce Clause protects the interstate market,
not particular interstate firms, from prohibitive or burdensome regulations.
Dissent. Justice Harry Blackmun (J. Blackmun) dissented because he felt the majority
failed to condemn impermissible discrimination against interstate commerce in retail
gasoline marketing. He felt the laws effect was to protect in state retail gas station dealers
over the out-of-state retailers. It is not justified by a legitimate state interest and can be
vindicated by a more even-handed regulation. He felt the law violated the Commerce
Clause.
Discussion. All gasoline in Maryland originates from out of state. Therefore, it does not
discriminate against out of state retailers because there are no in state retailers. The
Commerce Clause protects the interstate market, no particular interstate firms, from
prohibitive or burdensome regulations. Although the consuming public may be the
112 Exxon Corporation v. Governor of Maryland
independent refiner, that argument relates to the wisdom of the statute, not to its burden
on commerce. Thus, the Supreme Court of the United States (Supreme Court) held that a
state law that causes some business to shift from one interstate supplier to another does
not impermissibly burden interstate commerce.
113 West Lynn Creamery, Inc. v. Healy, Commissioner of Massachusetts Department of Food and Agriculture
West Lynn Creamery, Inc. v. Healy, Commissioner of Massachusetts
Department of Food and Agriculture
Citation. 512 U.S. 186 (1994).
Brief Fact Summary. A Massachusetts's law, which imposed a tax on in-state milk
sales, with the proceeds paid to local dairy farmers, was challenged on the ground that it
violated the United States Constitution's Commerce Clause.
Synopsis of Rule of Law. A state pricing order, which imposes a tax on the sale of local
products the proceeds of which are distributed as a subsidy to in-state producers of the
product, discriminates against interstate commerce and thus is unconstitutional under the
Constitution's Commerce Clause.
Facts. Massachusetts enacted a pricing order, which taxed all milk sales in the state,
regardless of whether it was produced in or out of state. The proceeds from the tax were
then disbursed to Massachusetts' dairy farmers only. The Defendant's, Healy,
Commissioner of Massachusetts Department of Food and Agriculture (Defendant),
rationale for this order was to protect local dairy producers. The Plaintiff, West Lynn
Creamery (Plaintiff), a milk dealer who purchased out-of-state milk challenged the
pricing order. The state courts rejected the challenge.
Issue. Does the Massachusetts statute violate the Constitution's Commerce Clause?
Held. Yes, the state's milk tax subsidy burdens interstate commerce. An assessment
scheme that levies on all distribution of a good, but disburses its assets to local producers
of the distributed goods only is unconstitutional. States are not allowed to enact tariff's on
out of state goods. The system at issue here although, although taking two steps to
achieve its goal, is a de facto tariff.
Discussion. The pricing order is funded principally from taxes on the sale of milk
produced in other states. Massachusetts' pricing order does not assist local farmers, but
instead burdens interstate commerce. This violates the cardinal principle that a State may
not benefit in state economic interests by burdening out-of-state competitors. When a
nondiscriminatory tax is coupled with a subsidy to one of the groups hurt by the tax, a
State's political processes can no longer be relied upon to prevent legislative abuse. This
is because one of the in-state interests, which would otherwise lobby against the tax, has
been mollified by the subsidy. Prevention of local industry by protecting it from the
rigors of interstate competition is the hallmark of the economic protectionism that the
Constitution's Commerce Clause prohibits.
114 State of Minnesota v. Clover Lead Creamery Co.
Case: State of Minnesota v. Clover Lead Creamery Co. 449 U.S. 456.
Brief Fact Summary. A Minnesota law banning the sale of milk in plastic
nonreturnable, nonrefillable containers was challenged on the ground that it had a
discriminatory purpose.
Synopsis of Rule of Law. A facially neutral state law will violated the United States
Constitution's (Constitution) Commerce Clause if the incidental burden imposed on
interstate commerce is clearly excessive in relation to the putative local benefits.
Facts. The Defendant, Minnesota (Defendant), enacted a statute banning the retail sale of
milk in plastic nonreturnable, nonrefillable containers. However, the state allowed the
sale of milk in paperboard cartons. The express purpose was to address the problem of
solid waste management in the state. The Plaintiff, Clover Leaf Creamery Co. (Plaintiff)
filed suit to enjoin the statute, arguing that the actual basis for it was to promote the
economic interest of certain segments of the local dairy and pulpwood industry and to
harm the plastics industry.
Issue. Can a facially neutral state law violate the Constitution's Commerce Clause if the
incidental burden imposed on interstate commerce is clearly excessive in relation to the
putative local benefits?
Held. Yes. Here, however, the law banning plastic milk containers is not a "clearly
excessive burden" on out of state interests. The Supreme Court of the United States
(Supreme Court) observed that the statute at issue did not discriminate between intrastate
and interstate distributors because both were prohibited from selling milk in disposable
plastic containers. The Supreme Court also observes that this statute was not a
protectionist measure, but aimed at protecting the environment. Moreover, the Supreme
Court determined that the change of containers is not an excessive burden upon out-of-
state producers.
Discussion. If a state law purporting to promote environmental purposes is in reality
enacted as a means of economic protectionism, a virtually per se rule of invalidity
applies. Here, the burden imposed in interstate commerce was minor, since milk products
may continue to move freely across the State border and changes in packaging will be
only a slight inconvenience. Pulpwood producers are the only Minnesota industry likely
to benefit significantly from the statute at the expense of out-of-state firms. This degree
of burden on the out-of-state plastic industry has been exaggerated. The burden is not
"clearly excessive" in the light of the substantial state interest in promoting conservation
of energy and other natural resources and easing solid waste disposal problems, which we
have already reviewed in the context of equal protection analysis.
115 Dean Milk Co. v. City of Madison, Wisconsin
Case: Dean Milk Co. v. City of Madison, Wisconsin, 340 U.S. 349 (1951).
Brief Fact Summary. The Plaintiff, Dean Milk (Plaintiff), upon being denied a license to
sell milk in the Defendant City, the City of Madison, Wisconsin (Defendant) because its
pasteurization plants were more than five miles away, challenged the Defendant's milk
plant ordinance on grounds that it violated the Commerce Clause of the United States
Synopsis of Rule of Law. If there are reasonable alternatives available, a local health
ordinance that places a discriminatory burden on interstate commerce violates the
Commerce Clause of the Constitution.
Facts. The Defendant passed an ordinance barring pasteurized milk that had not been
processed within 5 miles of the City. The Plaintiff, a milk distributor bought its milk from
farms in Illinois and Wisconsin, 65 and 85 miles from the Defendant city. Since the milk
came from more than five miles away the Plaintiff was denied a license to sell the milk in
the Defendant city. The Plaintiff contended the ordinance put an undue burden on
Issue. Does a local health ordinance that places a discriminatory burden on interstate
commerce violate the Commerce Clause when reasonable and adequate alternatives are
available?
Held. Yes, states must consider reasonable alternatives when enacting laws intended to
protect public health, but which also burden commerce. The Defendant city's ordinance
protects the in-state milk production business from out of state competition. The Supreme
Court of the United States (Supreme Court) observes that the ordinance plainly
discriminates against interstate commerce. The Supreme Court observed that the
Defendant city could have sent its inspectors to plants that were more than five miles
away or could exclude from its borders milk not produced in accordance with the
Defendant city's standards. Moreover, the local ratings could be checked by the United
States Public Health Service in order to enforce the provision.
Discussion. The practical effect of the ordinance is that it excludes milk pasteurized in
Illinois. "[O]ne state, in its dealings with another, may not place itself in a position of
economic isolation."
116 Maine v. Taylor and United States
Maine v. Taylor and United States, 477 U.S. 131 (1986).
Brief Fact Summary. The Defendant, Taylor (Defendant), in defense of criminal
charges, challenged Maine's law prohibiting the importation of live baitfish on the ground
it violated the Commerce Clause of the United States Constitution (Constitution).
Synopsis of Rule of Law. A state statute that affirmatively discriminates against
interstate commerce passes vigorous a strict scrutiny test where it attempts to prohibit
significant damage to the State's environmental well-being.
Facts. A law in Maine, enacted to protect the State's fisheries from parasites and non-
native species, prohibited the importation of live baitfish. The Defendant operated a bait
business in Maine and imported live bait called "golden shiners" against federal law. The
federal law made it a crime to import, receive or purchase in interstate commerce any fish
possessed in violation of State law. The Defendant moved to dismiss the indictment on
the ground that Maine's statute was an unconstitutional burden on interstate commerce.
The District Court dismissed the Defendant's motion and the Court of Appeals reversed.
1 • Maine intervened to defend the validity of its statute.
Issue. Does a state statute that affirmatively discriminates against interstate commerce
pass the strict scrutiny test where it attempts to prohibit significant damage to the State's
environmental well being?
Held. Yes, the Supreme Court of the United States (Supreme Court) upholds this patently
discriminatory law. State may regulate matters of legitimate public concern even though
interstate commerce may be effected. Where a law is discriminatory on its face, the state
must show that the law both serves a legitimate local purpose and that the purpose cannot
be achieve by available nondiscriminatory means. Here, the Supreme Court determines
that Maine chose the least discriminatory means to establish their legitimate objective.
Dissent. Justice John Paul Stevens (J. Stevens) does not like the fact that Maine is the
only State that can blatantly discriminate against out of state baitfish. He feels that Maine
should have the heavy burden of showing there are no other alternatives.
Discussion. Maine's statute directly restricts interstate trade by blocking all inward
shipments of live baitfish, but this alone does not render it unconstitutional. The
environment is a legitimate concern for Maine because importing minnows could ruin
Maine's fragile fisheries. Therefore, Maine cannot be expected to sit idly by and wait
until potentially irreversible environmental damage has occurred or until the scientific
community agrees, on what disease organisms are or are not dangerous, before it acts to
avoid such consequences.
117 Loren J. Pike v. Bruce Church, Inc
Loren J. Pike v. Bruce Church, Inc
Brief Fact Summary. The Plaintiff, Bruce Church, Inc. (Plaintiff) challenged a law
enacted by the Defendant, state of Arizona (Defendant) that prevented the transportation
of uncrated cantaloupes within the State. The Plaintiff sued arguing that the law violated
the Commerce Clause of the United States Constitution (Constitution)
Synopsis of Rule of Law. Where a state statute regulates even-handedly to effectuate a
legitimate local public interest and its effects on interstate commerce are only incidental,
it will be upheld unless the burden imposed on such commerce is clearly excessive in
relation to the putative local benefits.
Facts. An Arizona law requires that all cantaloupes grown in Arizona and offered for sale
must be packed in closed standard containers approved by government officials. Loren
Pike, the Defendant state's official in charge of enforcing the law, issued an order
prohibiting the Plaintiff, a cantaloupe farming company, from transporting uncrated
cantaloupes from their Arizona ranch to the California packing place. The closest
available packing shed to the Defendant state was California and calculated they would
suffer $700,000 in losses unless the order was enjoined.
1 • The Plaintiff filed suit in district court to enjoin the order on the ground
that it was unconstitutional because it violated the Constitution's
Commerce Clause.
Issue. Can a nondiscriminatory state law violate the dormant Commerce Clause?
Held. Yes, the Supreme Court of the United States (Supreme Court) developed a test for
determining whether nondiscriminatory state laws violate the dormant commerce clause.
Where a nondiscriminatory law effectuates a legitimate local interest and its effects on
interstate commerce are only incidental, it will be upheld unless the burden imposed on
interstate commerce is clearly excessive in relation to the putative local benefits. Where
there is a legitimate local interest it must be measured against the burden it composes.
Discussion. The purpose of the law in question here was to protect and enhance the
reputation of growers within the State, a legitimate State interest. However, the State's
interest is not worth the Arizona cantaloupe company building and operating a new
$200,000 packing plant.
118 Bibb, Director, Department of Public Safety of Illinois v. Navajo Freight Lines, Inc.
Bibb, Director, Department of Public Safety of Illinois v. Navajo Freight
Lines, Inc.
Citation. 359 U.S. 520 (1959).
Brief Fact Summary. The Plaintiff, Navajo Freight Lines, Inc. (Plaintiff), a trucking
company, challenged the constitutionality of Illinois' mudguard law on the ground that it
interfered with interstate commerce.
Synopsis of Rule of Law. In determining whether a state's nondiscriminatory highway
safety law violates the dormant Commerce Clause of the United States Constitution
(Constitution), the Supreme Court of the United States (Supreme Court) must look to the
total effect of the law as a safety measure. If it is too slight, or problematic, so that it does
not outweigh the national interest in keeping interstate commerce free from interferences
that seriously impede it, then it cannot stand.
Facts. The state of Illinois passed a law requiring trucks to have contoured mudguards. In
Arkansas, states were required to have straight mudguards, while in all other states either
shape was acceptable. The Plaintiff challenged the Illinois law arguing that it violated the
Commerce Clause because it unduly burdened interest commerce and enforcement
should be enjoined.
1 • The District Court found for the Plaintiff and required the Defendants,
Bibb and other Illinois officials (Defendants), from enforcing the law. The
District Court determined that the cost per truck would range from $4,500
to $45,850 to obtain the mud flaps required in Illinois.
Issue. Is this Illinois statute requiring a special mudguard constitutional?

Held. Justice William Douglas (J. Douglas) first observed that States have an important
interest in providing for the safety of their highways. Moreover, safety measures carry a
strong presumption of validity. However, here, the costs of doing business would be
greatly increased. The Supreme Court observed that trucks could not enter Illinois and
Arkansas without stopping at the border to change their mudguards. Moreover, the
Illinois regulation would seriously interfere with "interline trucking", which is the
changing of trailers between carriers. The Supreme Court also determined that contoured
mudguards have no real safety advantages over straight mudguards and in actuality
actually caused additional hazards.
Discussion. States have the power to regulate their highways, however, these mudguards
create operational delays and costs. The statute also seriously interferes with the
"interline" operations of motor carriers. The carriers will not be able to switch cargo that
does not allow certain mud flaps. The clearly violates the dormant Commerce Clause.
119 Raymond Kassel v. Consolidated Freightways Corporation of Delaware
Raymond Kassel v. Consolidated Freightways Corporation of Delaware
Brief Fact Summary. The Plaintiff, Consolidated Freightways Corporation of Delaware
(Plaintiff) had 65-foot doubles. However, Iowa enacted a statute banning trucks more
than 60 feet long. The Plaintiff sued saying the law violated the Commerce Clause of the
Synopsis of Rule of Law. Although state regulations concerning highway safety are
important, if the furtherance of safety is marginal or the burden on commerce substantial,
the regulations will be declared invalid under the United State Constitution's Commerce
Clause.
Facts. Iowa enacted a highway safety law limiting the size of trucks to 60 feet. The
Plaintiff used 65-foot trucks. Iowa was the only state in the western or midwestern United
States to outlaw the use of 65-foot doubles. The Iowa District Court found the statute
unconstitutional, concluding there is no valid safety reason for barring 65-foot doubles
from Iowa's highways
Issue. Was Iowa's regulation offering only marginal safety benefits an unconstitutional
burden on interstate commerce?
Held. Yes, Iowa's truck-length limitations were unconstitutional because Iowa failed to
present persuasive evidence that banning Plaintiff's truck made the roads much safer. The
statute compels trucking companies to either route 65-foot doubles around Iora or use the
smaller trucks allowed by the Iowa state statute.
Dissent. Justice William Rehnquist (J. Rehnquist) dissents because he feels the Supreme
Court of the United States (Supreme Court) has overstepped their authority to review
state legislation. He felt the Supreme Court intentionally left out the fact that along Iowa's
route 80, Pennsylvania and New Jersey also ban 65-foot trucks.
Discussion. Iowa failed to present persuasive evidence why their law limiting trucks to
60 feet instead of 65 feet was safer. Also, Iowa is not in step with all the surrounding
states. Iowa's statute creates a burden to the interstate flow of goods by truck because
certain trucks cannot pass through Iowa. Since there is no significant safety interest the
law violates the Constitution's Commerce Clause.
120 CTS Corp. v. Dynamics Corp. of America
CTS Corp. v. Dynamics Corp. of America
Citation. 481 U.S. 69 (1987).
Brief Fact Summary. The state of Indiana passed an anti-corporate takeover law
protecting domestic corporations. The Plaintiff, Dynamic Corporation of America
(Plaintiff) wanted to purchase the Defendant, CTS Corp. (Defendant) and challenged the
law based on the Commerce Clause.
Synopsis of Rule of Law. A state law that delineated shareholder's voting rights and
limited the effectiveness of tender offers was held not to violate the Commerce Clause
because (i) the law was equally applicable to in-state and out-of-state offerors; (ii) it did
not create inconsistent regulation by multiple states and (iii) it applied to domestically-
incorporated corporations with substantial resident shareholders.
Facts. The state of Indiana's corporate takeover law provides that when one acquires
"control" shares in an Indiana corporation, the acquiring party will obtain voting rights
only if the takeover was approved by a majority of the preexisting disinterested
shareholders. The Plaintiff owned 9.6% of the Defendant corporation and initiated a
tender offer, which would have increased the Plaintiff's stake to 27.5%. As a result, a vote
of the preexisting disinterested shareholders was required. The Plaintiff challenged the
statute because most hostile takeovers are initiated by out of state corporations. The
district Court held that the statute violated the Commerce Clause and federal securities
laws. The court of appeals affirmed the district court.
Issue. Does the Commerce Clause of the United States Constitution (Constitution)
invalidate a state law, which regulates corporate takeovers?
Held. No, state laws limiting corporate takeovers do not violate commerce clause and are
therefore not unconstitutional. This case implicates the dormant Commerce Clause,
which is concerned with those statutes discriminating against interstate commerce. The
Supreme Court of the United States (Supreme Court) observed that the law does not
discriminate because it applies to both Indiana and non-Indiana corporations. The
Supreme Court also found that Indiana's law would not result in inconsistent regulations.
Although tender offers may be hindered, that is not enough to invalidate the Indiana law.
Corporations are created under the auspices of state law and therefore states can
formulate rules and regulations regarding their internal operations if they do not
discriminate. Here, they did not discriminate.
Discussion. There are three reasons why a law concerning corporate takeovers is
constitutional:
1 • The law was equally applicable to in-state and out-of-state offerors
2 • It did not create inconsistent regulation by multiple states and
121 CTS Corp. v. Dynamics Corp. of America
1 • It applied to domestically incorporated corporations with substantial
resident shareholders.
Also, the primary purpose of the Indiana law is to protect shareholders of Indiana
corporations. Most importantly, the law does not prohibit ANY entity from offering to
purchase shares in Indiana corporations.
122 Western & Southern Life Insurance Co. v. State Board of Equalization of California
Western & Southern Life Insurance Co. v. State Board of Equalization
of California
Citation. 451 U.S. 648 (1981).
Brief Fact Summary. The Plaintiff, the Western & Southern Life Insurance Company
(Plaintiff), challenged a California law that imposed a tax on out of state insurers. The
Plaintiff argued that the law violated the United States Constitution's (Constitution)
Commerce Clause.
Synopsis of Rule of Law. Congress, pursuant to the Constitution, may give States the
power to enact laws that restrict the flow of interstate commerce.
Facts. California, pursuant to a law promulgated by Congress, enacted a law imposing a
retaliatory tax on out-of-state insurers. The tax applied when an out-of-state insurer's state
of incorporation imposed higher taxes on California insurers doing business in the state
than California would otherwise impose on that state's insurers doing business in
California. The Plaintiff challenged the statute arguing it violated the Constitution's
Commerce Clause. The California Superior Court ruled the tax unconstitutional, but the
California Court of Appeals reversed that decision.
Issue. Can Congress give the States the power to enact laws that restrict the flow of
commerce?
Held. Yes, the one exception to the dormant Commerce Clause is that Congress may
authorize certain State laws. "If Congress ordains that the States may freely regulate an
aspect of interstate commerce, any action taken by a State within the scope of
congressional authorization is rendered invulnerable to a Commerce Clause challenge."
Discussion. The Constitution grants Congress the authority to regulate Commerce among
the states. Therefore, Congress may confer upon the States the ability to restrict the flow
of commerce.
123 Reeves, Inc v. William Stake
Case: Reeves, Inc v. William Stake 447 U.S. 429 (1980).
Brief Fact Summary. South Dakota built a state-owned cement plant, which for many
years sold to private buyers, but later gave preferences to in-state buyers. The Plaintiff,
Reeves Inc., (Plaintiff) a long time buyer sued under the United State Constitution's
(Constitution) Commerce Clause.
Synopsis of Rule of Law. States that are "market participants" in the buying and selling
of goods, as opposed to "market regulator", are not bound by the Constitution's
Commerce Clause and can favor their in-state businesses.
Facts. South Dakota built and operated a cement plant, which sold to both in and out-of-
state buyers for 50 years. Later, South Dakota implemented a policy that gave preference
to in state buyers. The Plaintiff was a long time out-of-state buyer and sued South Dakota
for violated the Constitution's Commerce Clause.
Issue. May a State give preference to in-state buyers?
Held. Yes, a State acting as a "market participant" may favor their in-state buyers. There
is no indication of a constitutional plan to limit the ability of the state itself to operate
freely in the market.
Dissent. Justice Lewis Powell (J. Powell) dissents because he thinks this is exactly the
type of economic protectionism that the Constitution's Commerce Clause was intended to
prevent.
Discussion. When a state becomes a "market participant", as is the case here because
they are selling cement, their commercial activities are not bound by the Commerce
Constitution's Clause and may favor in-state interests. The Constitution's Commerce
Clause is applicable to State taxes and other regulatory measures that impede interstate
commerce.
124 South-Central Timber Development, Inc v. Commissioner, Department of Natural Resources of Alaska
South-Central Timber Development, Inc v. Commissioner, Department
of Natural Resources of Alaska
Citation. 467 U. S. 82 (1984).
Brief Fact Summary. The State of Alaska requires buyers of Alaskan timber to process
it in Alaska before they export.
Synopsis of Rule of Law. Although state-owned businesses may favor in-state
purchasers, they may not attach conditions to the sale of products that will burden
Facts. As a condition of Alaskan timber purchasing, the buyer had to get it processed in
the State. The purpose of the requirement was to protect Alaska timber processors,
develop new industries and make a larger profit on their timber resources.
1 • The Plaintiff, South-Central Timber Development, Inc (Plaintiff) filed
suit seeking an injunction to prevent this requirement as it violated the
United State Constitution's (Constitution) Commerce Clause. Alaska
claimed it was a "market participant" and therefore precluded from the
strict scrutiny test.
2 • The court of appeals determined that Congress had authorized Alaska's
processing requirement.
Issue. May a State, acting as a market participant, impose a requirement on "down-

stream" market participants without violating the dormant Commerce Clause?
Held. No, the market participant exception is limited to the particular market in which the
State is a participant. If the state acts as a "market participant" a state can impose burdens
on interstate commerce within the market it is a participant, but allows it to go no further.
The Supreme Court of the United States (Supreme Court), for Commerce Clause
purposes, defines "Market" narrowly and precludes a states's exercise of leverage in the
market in which it is directly participating in order to regulate a "downstream" market.
Here, the Supreme Court found Alaska to be a direct participant in the timber market, but
not in the processing market. Thus, Alaska could not legitimately prefer its own residents
in the processing market only in the initial timber market.
Dissent. Justice William Rehnquist (J. Rehnquist) dissents because he thinks the line
between participant and regulator is a fine line. He felt Alaska was indirectly paying
buyers to use Alaskan processors and that there were other ways to accomplish that same
result. He therefore, felt it was unfair for the Supreme Court to decide that the
Constitution's Commerce Clause barred their chosen path.
Discussion. Alaska is more than merely a "market participant" because they are imposing
a requirement on their timber after the sale. A seller, "usually has no say over,
125 South-Central Timber Development, Inc v. Commissioner, Department of Natural Resources of Alaska
and no interest in, how the product is to be used after sale." The State may not impose
conditions that have a substantial regulatory effect outside of a particular market.
126 Toomer v. Witsell
Toomer v. Witsell
Brief Fact Summary. The Plaintiffs, Toomer and other out-of-state commercial
fisherman (Plaintiff), challenged a South Carolina Law that imposed higher license fees
to out-of-state boats based than in state boats. The Plaintiffs based their challenge on the
Privileges and Immunities Clause of the Fourteenth Amendment of the United States
Synopsis of Rule of Law. If a State violates the Fourteenth Amendment's Privileges and
Immunities Clause, the Supreme Court of the United States (Supreme Court) must
determine whether the law discriminates against citizens of other states and if so, whether
there is a substantial reason for the discrimination beyond the mere fact that they are
citizens of another state.
Facts. South Carolina enacted a statute that imposed a license fee for out of state
commercial shrimp boats that was 100 times greater than resident shrimp boats. The
Plaintiffs sued saying it was a violation of the Fourteenth Amendment's Privileges and
Immunities Clause. The Plaintiffs contended that the purpose of the statute was not to
conserve shrimp, but to exclude out of state shrimp boats creating a monopoly for South
Carolina fishermen.
Issue. Does a state law that discriminates against out of state fishermen violate the
Fourteenth Amendment's Privileges and Immunities Clause where its purpose is to
conserve natural resources, but its effect creates a monopoly for residents of the state?
Held. Yes, the purpose of the Fourteenth Amendment's Privileges and Immunities Clause
was to help fuse the Nation, to ensure that people enjoy the same rights in each state.
Therefore, the Privileges and Immunities Clause invalidates South Carolina's license fee
law.
Discussion. Because of the nature of the Privileges and Immunities Clause, a citizen of
State A may enjoy substantial equality with citizens of State B. Although it is not
absolute, it does bar discrimination against citizens of other States where no substantial
reason for the discrimination exists besides the fact that they are merely citizens of
another state. The South Carolina law clearly discriminates against non-residents merely
because they are nonresidents of South Carolina.
1 • South Carolina contends that the purpose of the law was to protect
natural resources, the State's shrimp supply. However, the purpose of the
Privileges and Immunities Clause is to outlaw classifications based on
non-citizenship. Moreover, there was no indication that non-resident
fishermen were the source of the problem that the statute was aimed.
Therefore, the statute is unconstitutional.
127 United Building and Construction Trade Council of Camden County v. Mayor and Council of the City of
Camden
United Building and Construction Trade Council of Camden County v.
Mayor and Council of the City of Camden
Citation. 465 U.S. 208 (1984).
Brief Fact Summary. A municipal ordinance requiring that 40% of employees working
on city-funded projects be residents of the city, was challenged under the Fourteenth
Amendment of the United States Constitution's (Constitutions) Privileges and Immunities
Clause.
Synopsis of Rule of Law. The Privileges and Immunities Clause prevents states (and
cities in this case) from discriminating against non-residents if two elements are met.
First, the discrimination burdens a "fundamental" privilege. Here the fundamental
privilege was employment. Second, there is no "substantial reason" for the discriminating
treatment.
Facts. The Defendant, the City of Camden, New Jersey (Defendant) passed an ordinance
that all city projects needed at least 40% of Camden residents. The Plaintiff, United
Building and Construction Trade Council of Camden County (Plaintiff) challenged the
ordinance under the Privileges and Immunities Clause, asserting that it discriminated
against non-Camden residents. However, the Defendant contends that the Privileges and
Immunities Clause (i) applies to states and not cities (ii) does not prohibit discriminatory
laws based on municipal residency and (iii) does prohibit laws which also discriminate
against in-state residents as well as out-of-state residents.
Issue. Does this law violate the Fourteenth Amendment of the Constitution's Privileges
and Immunities Clause?
Held. Yes, the Privileges and Immunities Clause prevents states and cities from
discriminating against non-residents if (1) the discrimination burdens a "fundamental"
privilege (here it was employment) and (2) there is no "substantial reason" for the
discriminating treatment.
Discussion. There is a two-part analysis in determining whether a local ordinance
violates the Privileges and Immunities Clause. First, a court must determine whether the
discrimination burdens the "fundamental" privilege (here it was employment). Second, a
court must determine whether there is no "substantial reason" for the discriminating
treatment.
1 • Also, since cities derive their laws from the State legislation, they are
therefore, part of the State and covered by the Privileges and Immunities
Clause.
2 • Here, the law also applies to in-state residents who do not live in
Camden. They, however, can vote against such ordinances and legislators
who
128 United Building and Construction Trade Council of Camden County v. Mayor and Council of the City of
Camden
1 propose ideas pertaining to such ordinances. Out-of-state residents have no
protection except for the Privileges and Immunities Clause protections.
129 Lester Baldwin v. Fish and Game Commission of Montana
Lester Baldwin v. Fish and Game Commission of Montana
Citation. 436 U.S. 371 (1978).
Brief Fact Summary. A Montana state law required higher fees for hunting for out-of-
staters and the Plaintiffs, Lester Baldwin and other recreational hunters (Plaintiffs)
challenged the law. The Plaintiffs argued that the law violated their rights under the
Privileges and Immunities Clause of the United States Constitution (Constitution).
Synopsis of Rule of Law. A state law, which imposes higher fees for out-of-staters on
recreational hunting, is constitutional because it is not a "fundamental right" entitled to
protection by the Privileges and Immunities Clause of the Constitution.
Facts. The Plaintiffs sued because Montana imposed higher hunting fees on out-of-state
hunters than resident hunters. The licensing scheme, which applied to elk-hunting, was at
least 7 ½ times as expensive for nonresidents as residents. The Plaintiffs assert that the
Montana law violates the Privileges and Immunities Clause of the Constitution because it
imposes an unreasonable burden on citizens from other states. The district court denied
all relief.
Issue. Is a state law unconstitutional when it imposes a higher fee on a recreational sport
and not a "fundamental right"?
Held. No, such a state law is not unconstitutional because recreational hunting does not
constitute a fundamental right entitled to protection by the Privileges and Immunities
Clause of the Constitution. Only with respect to those "privileges" and "immunities"
bearing upon the vitality of the Nation as a single entity, must a state treat all citizens,
residents and nonresidents equal.
Discussion. Elk and other big game hunting targets are associated with recreational
hunting. The desire to share in the limited supply of such animals in Montana is not
covered by the Privileges and Immunities Clause of the Constitution. Moreover, equality
of all people to such game is not necessarily for the well being of the United States. Non-
residents are not deprived of a means or a way to make a livelihood by paying this higher
fee.
130 Supreme Court of New Hampshire v. Kathryn A. Piper
Supreme Court of New Hampshire v. Kathryn A. Piper
Citation. 470 U.S. 274 (1985).
Brief Fact Summary. The Appellee, Ms. Kathryn A. Piper (Appellee), a nonresident of
New Hampshire, desired to practice law in New Hampshire. However, the Appellee
could not because the Appellant, the Supreme Court of New Hampshire (Appellant), said
only the New Hampshire lawyers were allowed to practice there. The Appellee claimed
the decision violated her rights under the Privileges and Immunities Clause of the
Fourteenth Amendment of the Constitution (Constitution).
Synopsis of Rule of Law. The opportunity to practice law is a "fundamental right."
There is no substantial reason for denying nonresidents admission to the New Hampshire
to and the discrimination does not bear a close relationship to the State's objectives.
Facts. The Appellee is a resident of Vermont who wanted to practice law in New
Hampshire, but could not because New Hampshire would not allow nonresidents to
practice law in New Hampshire. Specifically, Rule 42 of the New Hampshire Supreme
Court included the prohibition on admission. The Appellee sued the Supreme Court of
New Hampshire contending that the rule violated her rights under the Privileges and
Immunities Clause of the Fourteenth Amendment of the Constitution.
Issue. Is the practice of law a "fundamental right" and therefore protected by the
Fourteenth Amendment's Privileges and Immunities Clause?
Held. Yes, the practice of law a "fundamental right" and therefore protected by the
Fourteen Amendment's Privileges and Immunities Clause.
Dissent. Judge William Rehnquist (J. Rehnquist) dissents because he thinks the practice
of law does not easily transfer across state lines and is different from other occupations. J.
Rehnquist feels the state has a substantial interest in creating its own sets of laws that
parallel the states interest. States have an interest in demanding residents practice law in
New Hampshire because it makes the pool of lawyers better. New Hampshire has
substantial reasons for demanding lawyers be residents and the rule does not violate the
Fourteenth Amendment's Privileges and Immunities Clause.
Discussion. The practice of law is essential to the economy and is therefore a privilege
protected under the Fourteenth Amendment's Privileges and Immunities Clause. Out-of-
state lawyers are essential to the field because they will be more likely to bring unpopular
claims. The opportunity to practice law is a "fundamental right." It does not preclude
discrimination against nonresidents when: (1) there is a substantial reason for the
difference in treatment and (2) the discrimination against non-residents bears a
substantial relationship to the State's and objective.
The Supreme Court of the United States (Supreme Court) concluded there is no evidence
to support New Hampshire's justification for their rule. New Hampshire neither advances
"substantial reason" for its discrimination against nonresident applicants to the bar, nor
131 Supreme Court of New Hampshire v. Kathryn A. Piper
demonstrates that the discrimination practiced bears a close relationship to the State's
objectives.
132
CHAPTER V. The
Structure Of The
Constitution's Protection
Of Civil Rights And Civil
Liberties
133 Barron v. Mayor and City Council of Baltimore
Barron v. Mayor and City Council of Baltimore 32 U.S. (7 Pct.) 243 (1833).
Brief Fact Summary. The Plaintiff, Baron (Plaintiff), a wharf owner sued the Defendant,
the city of Baltimore (Defendant) for taking his property without compensation in
violation of the Fifth Amendment of the United States Constitution (Constitution).
Synopsis of Rule of Law. The Bill of Rights does not apply to state and local
government, only to Federal government.
Facts. The Plaintiff sued the Defendant because they ruined his wharf by diverting
streams and making water too shallow for his boats. The Plaintiff claimed that the city
took his property without just compensation and in violation of the Takings Clause of the
Fifth Amendment of the Constitution
Issue. Does the Fifth Amendment of the Constitution apply to local government?
Held. No. Justice John Marshall (J. Marshall) writing for the Supreme Court of the
United States (Supreme Court) observed that the framers intended the Amendments of
the United States Constitution (Constitution) to apply only to the Federal government and
not the states. Each state formulated their own constitution, so the Amendments did not
apply to them. Article 1 § 10 of the Constitution provides an exclusive list of the
restriction upon state government. Without words specifically stating that the
Amendments of the Constitution apply to the states, the Supreme Court refused to
recognize that they did. Moreover, the Amendments themselves lack words allowing for
an interpretation that they apply to the states. Here, since there was no conflict between
the city and state's action and the Constitution the Supreme Court had no jurisdiction.
Discussion. The Constitution was designed for the federal government and not the states.
The States each have their own Constitution with their own powers. Amendments were
enacted to guard against the encroachments of the federal government and not the states.
Also, the amendments do not have any language indicating that they apply to the states.
Slaughter-House Cases (Butchers' Benevolent Association of New
Orleans v. Crescent City Livestock Landing and Slaughter-House
Company)
Citation. 83 U.S. (16 Wall.) 36 (1873).
Brief Fact Summary. Butchers challenged the constitutionality of a state law giving a
monopoly to a particular slaughterhouse.
Rule of Law. The Thirteenth and Fourteenth Amendments of the United States
Constitution (Constitution) apply only to former slaves. The Fourteenth Amendment
protects the privileges and immunities of national, not state citizenship.
Facts. In 1869, Louisiana passed a law giving a monopoly over the New Orleans
slaughterhouse business to the Crescent City Livestock Landing and Slaughterhouse
Company. The Butchers' Benevolent Association of New Orleans argued that the law
violated the Thirteenth and Fourteenth Amendments of the Constitution because it denied
them due process, denied them equal protection and abridged their privileges and
immunities.
Issue. Do the Thirteenth and Fourteenth Amendments of the Constitution make the Bill
of Rights applicable to the states?
Held. No. The Supreme Court of the United States (Supreme Court) observed that the
Fourteenth Amendment of the Constitution protects the privileges and immunities of
national, not state, citizenship, and neither the Equal Protection, Due Process, or Privilege
and Immunities Clauses of that Amendment may be used to interfere with state control of
the privileges and immunities of state citizenship. The underlying purpose of the three
post-Civil War amendments to the Fourteenth Amendment of the Constitution was to
eliminate the remnants of African Slavery, not to effect fundamental changes in the
relation of government. The Amendments were promulgated to ensure that former salves
were protected from laws passed by the federal government.
EPnot able to sell meat like others can.
Dissent. Justice Stephen Field (J. Field) dissents because the citizens of a State are also
citizens of the United States and are protected.
Discussion. The Thirteenth Amendment of the Constitution applied
only to slavery. The Fourteenth Amendment of the Constitution was
designed to protect newly freed slaves from discrimination. However,
together (with the Fifteenth Amendment of the Constitution giving
slaves the right to vote) these amendments were designed to remedy
the grievances of blacks. However, the amendments also forbid
enslaving other races. The language is "No State shall make or enforce
any law which shall abridge the privileges and immunities of citizens of
the United States." If this clause was meant to protect a citizen of a
state against his own State's legislation, then the drafter would have
used that language, as they did in the previous sentence. This clause
protects the privileges and immunities of the citizens of the United
States, not the citizens of the
135 Slaughter-House Cases (Butchers' Benevolent Association of New Orleans v. Crescent City Livestock Landing
and Slaughter-House Company)
states. The fourth article of the Constitution also has a Privileges and Immunities Clause
which states, "The citizens of each State shall be entitled to all the privileges and
immunities of citizens of the several states." This clause protects fundamental rights.
1 • The rights claimed by the Plaintiffs are not privileges and immunities of
citizens of the United States within the meaning of the Fourteenth
2 • Also, when analyzing the Due Process Clause of the Fourteenth
Amendment of the Constitution, the restraint imposed by Louisiana upon
the Plaintiffs' trade cannot be considered a deprivation of property.
136 Saenz v. Roe
Saenz v. Roe 526 U.S. 489 (1999).

Brief Fact Summary. California passed a law that awarded less welfare benefits to
residents who lived in California for less than 12 months than it paid other residents.
Synopsis of Rule of Law. Under the Privileges and Immunities Clause of the United
States Constitution (Constitution), a State must provide the same benefits to new
residents as it does to other residents.
Facts. California enacted a law limiting the welfare benefits for citizens who lived in
California for less than 12 months. The welfare family would be paid the amount they
received in their last state of residence. The Respondents, Brenda Roe and Anna Doe
(Respondents) recently moved to California and challenged the law on equal protection
grounds. The district court preliminarily enjoined implementation of the statute and the
court of appeals affirmed.
Issue. Does a statute providing lower benefits to families who have lived in California for
less than 12 months violate the Privileges and Immunities Clause of the Constitution?
Held. Yes, the Supreme Court of the United States (Supreme Court) applies the
Constitution's Fourteenth Amendment Privileges and Immunities Clause for nearly the
first history. The Supreme Court determined that durational residency requirements
violate the right to travel by denying a newly-arrived citizen the same privileges and
immunities enjoyed by other citizens in the same state, and are therefore subject to strict
scrutiny. The state's legitimate interest in saving money provides no justification for its
diction to discriminate among equally eligible citizens.
Dissent. Justice William Rehnquist (J. Rehnquist).
1 • J. Rehnquist does not like the fact that the Privileges and Immunities
Clause of the Constitution has only been applied once before and was
overruled five years later. J. Rehnquist felt that California;s law was a
good faith residency requirement.
Dissent. Justice Clarence Thomas (J. Thomas).

1 • J. Thomas thinks the majority applies a meaning to the Privileges and
Immunities Clause of the Constitution that the framers did not intend. The
Slaughter-House Cases, he contends, drained the Privileges and
Immunities Clause of any meaning. J. Thomas fears the Fourteenth
Amendment Privileges and Immunities Clause will be a new tool for
inventing rights.
Discussion. The Fourteenth Amendment of the Constitution reads: "All persons born or
naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the
137 Saenz v. Roe
United States and of the State wherein they reside. No State shall enforce any law which
shall abridge the privileges and immunities of the citizens of the United States." The right
to equal benefits is protected throughout the states of the United States. It has been
understood that the Privileges and Immunities clause protects the right to travel. The
Supreme Court did not think rational basis test or intermediate scrutiny applied here. The
right to travel includes a citizen's right to be treated equally after residing in a new state.
138 Twining v. New Jersey
Twining v. New Jersey
Citation. 211 U.S. 78 (1908).
Brief Fact Summary. New Jersey's law providing that a jury may draw an unfavorable
inference from a criminal defendant's failure to testify was challenged under the
Fourteenth Amendment's Due Process Clause.
Synopsis of Rule of Law. Certain provisions of the Bill of Rights may apply to the States
through the Fourteenth Amendment's Due Process Clause, if the provisions are necessary
for the due process of law.
Facts. A New Jersey law provided that a jury may be instructed to view a criminal
defendant's failure to testify as something negative. New Jersey was one of the few states
that did not incorporate in its constitution the right against compelled self-incrimination.
The Defendant, Twining (Defendant), challenged the law under both the Due Process
Clause and the Privileges and Immunities Clause of the Fourteenth Amendment of the
Issue. Does the Fourteenth Amendment of the Constitution make the right against self-
incrimination applicable to the States?
Held. No, provisions of the Bill of Rights may apply to the states if they are part of the
Due Process of Law.
Discussion. The exemption from compulsory testimony was included in the Bill of
Rights, but not in the body of the Constitution. The right is included in every state's
constitution besides Iowa and New Jersey, but they both include the rights in their laws.
The Defendant contends that the compulsory testimony, self-incrimination, was a denial
of the due process of law.
1 • Although provisions of the Bill of Rights are applicable to the States if
the provisions are incorporated into the Due Process Clause of the
Fourteenth Amendment of the Constitution, this right of self-incrimination
is not.
139 Duncan v. Louisiana
Duncan v. Louisiana
Citation. 391 U.S. 145 (1968).
Brief Fact Summary. The Defendant, Duncan (Defendant) was charged with simple
battery and was denied a jury trial. The Defendant claimed he was denied Due Process of
Law.
Synopsis of Rule of Law. The Sixth Amendment of the United States Constitution's
(Constitution) right to Jury Trial is a fundamental right and is applicable to the states
pursuant to the Fourteenth Amendment of the Constitution's Due Process Clause.
Facts. The Defendant was charged with the misdemeanor of simple battery, which was
punishable up to two years in prison and with a $300 fine. The Defendant requested a
jury trial and was denied it because Louisiana only provided trials for capital cases or
cases with punishment of hard labor. The Defendant claimed his denial of a jury trial
violated the Fourteenth Amendment Due Process Clause.
Issue. Does the Fourteenth Amendment's Due Process Clause make the Sixth
Amendment right to a jury trial applicable to the States?
Held. Yes, the Sixth Amendment right to a jury trial is applicable to the States. The
Supreme Court of the United States (Supreme Court) observed that a fundamental right to
a jury trial exists in criminal cases punishable by up to two years in prison. The purpose
of a jury trial is to protect defendants against overzealous or corrupt prosecutors and
compliant, biased or eccentric judges. However, there is no problem with the integrity of
those cases resolved without a trial. Thus, a constitutional problem does not exist with
accepting waivers or prosecuting petty crimes with a bench trial instead of a jury trial.
The reason for that is that judicial or prosecutorial unfairness is less likely. The
controlling factor is the maximum possible sentence and not the sentence the judge
actually imposes. Moreover, the court does not try to establish a bright line between petty
and serious crimes.
Concurrence. Justice Hugo Black (J. Black) and Justice William Douglas (J. Douglas)
concurred because they believed that the Fourteenth Amendment makes the entire Bill of
Rights applicable to the States. The concurring justices do not think that the States should
be able to experiment with protections provided by the Bill of Rights. They support
"selective incorporation" because it keeps judges "from roaming at will regarding policies
outside the Bill of Rights and has already made most of the Bill of Rights applicable to
the States."
Discussion. Under the Fourteenth Amendment of the Constitution, the States may not
"deprive any person of life, liberty, or property with due process of law." Because trial by
jury is fundamental to our scheme of justice it is protected by the Fourteenth
Amendment's Due Process Clause and is incorporated and applicable to the States.
140 The Civil Rights Cases: United States v. Stanley
The Civil Rights Cases: United States v. Stanley
Citation. 109 U.S. 3 (1883).
Brief Fact Summary. Owners of theatres and hotels were prosecuted for discriminating
against African Americans.
Synopsis of Rule of Law. Under the Fourteenth Amendment of the United States
Constitution (Constitution), Congress does not have the power to pass laws prohibiting
discrimination by private citizens.
Facts. Stanley and Nichols, accommodations owners, were charged with refusing to
allow people of color to stay at their inns. Also, Ryan and Singleton refused to allow
people with color in their theatres. All the Defendants were in violation of the Civil
Rights Act of 1875 (the Act), which subjects any person who denies another full and
equal enjoyment of inns, public transportation, theatres and other places of amusement to
criminal prosecution.
Issue. Does the Fourteenth Amendment of the Constitution (Constitution) prohibit
discrimination by private citizens?
Held. No, the Fourteenth Amendment of the Constitution can only prohibit state action,
not action by individual citizens. Although the Thirteenth Amendment of the
Constitution, by prohibiting slaveholding, does regulate private citizens, racial
segregation is not a "badge of slavery" sufficient to bring the Thirteenth Amendment into
operation.
Dissent. Justice John Harlan (J. Harlan) thinks the holding is too narrow and does not
take into the account the full effect that the Fourteenth Amendment was supposed to
have.
Discussion. The Fourteenth Amendment of the Constitution prohibits only State action.
1 • The Fourteenth Amendment of the Constitution gave Congress the
power to enforce the Amendment through appropriate legislation.
2 • The Fourteenth Amendment of the Constitution does not give Congress
the power to regulate private rights.
141 Marsh v. Alabama
Marsh v. Alabama
Citation. 326 U.S. 501 (1946).
Brief Fact Summary. Marsh, a Jehovah's Witness, was arrested for trespassing after
attempting to distribute religious literature in a privately owned Alabama town.
Synopsis of Rule of Law. A private entity that acts like a governmental body and
performs a public function is subject to the United States Constitution (Constitution).
Facts. A Corporation owned a town called Chickasaw in Alabama. The town was
accessible and used freely by the public except for the fact that the Gulf Shipbuilding
Corporation owned title to the town and paid the police. Marsh, a Jehovah's Witness was
told she needed a permit to distribute her flyers. However, Marsh declined to obtain a
permit and refused to leave the sidewalk. Marsh was arrested and charged with violating
Alabama's anti-trespassing statute.
1 • Marsh claimed that applying the statute to her violated the First and
Fourteenth Amendments of the Constitution.
Issue. Is the Constitution applicable to privately owned towns?

Held. Yes, it applies, because the town acts like a government body. The Supreme Court
of the United States (Supreme Court) first recognizes that if Chickasaw had been a
municipality the anti-trespassing statute would not be unconstitutional. The Supreme
Court specifically states that a private town is not the same as a private homeowner.
Meaning, it is not appropriate to suppress unwanted religious expression in the town like
it would be in a private home.
Discussion. The more an owner opens up his property to the public, the more the
Constitution is applicable. Here, the town was treated like a town, where the public was
free to do as they pleased. The fact that the property (the town) is privately owned, does
not justify restricting fundamental liberties. Therefore, Alabama's attempt to convict
Marsh cannot stand.
142 Jackson v. Metropolitan Edison Co
Jackson v. Metropolitan Edison Co
Citation. 419 U.S. 345 (1974).
Brief Fact Summary. The Petitioner, Jackson (Petitioner), a customer of the
Respondent, Metropolitan Edison Company (Respondent), claimed that the Respondent
performed a public function and therefore could not shut off her electricity without notice
and hearing pursuant to the Fourteenth Amendment's Due Process Clause.
Synopsis of Rule of Law. The actions of a private entity are not considered state action
unless there is a sufficiently close nexus between the State and the challenged action.
Facts. The Respondent is a privately owned corporation with an exclusive license to
deliver electricity in Pennsylvania. Someone living in the Petitioner's home, Dodson, had
opened an account with the Respondent. After Dodson left the residence, the bills were
not paid. The Petitioner claimed she did not receive bills. Also, the Petitioner claimed she
asked them to open an account for her twelve year old son Robert. As a result, the
Petitioner stopped paying her bills and four days later, with no notice, the Respondent
shut off her electricity.
Issue. Does the operation of a utility by a private party constitute state action?
Held. No, there must be a sufficiently close nexus between Pennsylvania and challenged
action to find a state action subject to the Fourteenth Amendment of the United States
Constitution (Constitution). Just because a business is subject to detailed and extensive
state regulation does not convert its action into state action. The Respondent is not
performing a public function because state law imposes no duty on the state to furnish
utility service.
Dissent. Justice Thurgood Marshall (J. Marshall) dissents because the Respondent has a
monopoly, is extensively regulated by the State and received state approval in many
aspects of their service.
1 • State authorization and approval is enough to make it a State Action
2 • There is extensive interaction between the State and the Respondent.
3 • Also, Pennsylvania approves their termination procedures.
Discussion. It is established that private action is immune from the Fourteenth

Amendment of the Constitution. Here, it is hard to distinguish where the Respondent falls
because although it is a private company, it is heavily regulated by the State. However,
regulation by the State does not necessarily mean it is a public function. The test is took
look if there is a sufficiently close nexus between the State and challenged action so that
the action of the private actor may be fairly treated as that of the State itself.
143 Jackson v. Metropolitan Edison Co
1 • The Respondent has a monopoly, but that does not mean it is a State
action
2 • The Respondent performed an essential public function (service of
electricity), but that does not make it a State action.
3 • The government regulates all doctors, lawyers and grocers, but they are
not state actors and the same should be true in this case.
144 Terry v. Adams
Terry v. Adams
Citation. 345 U.S. 461 (1953).
Brief Fact Summary. The Defendant, the Jaybird Democratic Association (Defendant),
excluded members based on race. The Defendant was held to be engaging in state action
for purposes of the Fifteenth Amendment of the United States Constitution (Constitution)
because the Defendant had control over the ultimate outcome of the election.
Synopsis of Rule of Law. A private political party that controls the outcome of elections
is engaging in state action, thereby making it subject to the Fifteenth Amendment of the
Constitution.
Facts. The Defendant is a very successful Texas political organization that operated a lot
like a political party. The Defendant's members are all white. The Defendant Association
held pre-primaries and for more than fifty years, the Defendant's county -wide candidates
had invariably been nominated in the Democratic primaries and elected to office. The
President of the Defendant Association admitted that the purpose of the party was to
exclude blacks from voting and to escape the Fifteenth Amendment's command that
everyone could vote, regardless of race. The Defendant argues that its association is a
private club because it was not governed by state laws and did not utilize state elective
machinery or funds. Moreover, the Defendant argued that the Fifteenth Amendment
constitutional challenge does not apply to their "self-governing voluntary club." The
Plaintiffs, a group of Negro voters (Plaintiffs), brought a class action to determine their
rights under the Fifteenth Amendment of the Constitution.
Issue. Does a private, successful, political association have to follow the Fifteenth
Amendment?
Held. Yes, a private organizations primary election constitutes a public function.
Discussion. For a state to allow what the Defendant wants is to defeat the purpose of the
Fifteenth Amendment. It is immaterial that the State does not control the Defendant
Association because their candidates are always successful. The Defendant's primary is
the only part of the election that determines who governs the county, which strips blacks
of their right to vote for elected officials if they cannot join.
145 Evans v. Newton
Evans v. Newton
Citation. 382 U.S. 296 (1966).
Brief Fact Summary. A provision of a will left by a Senator Augustus Bacon (the
Senator) conveyed a park to Macon, Georgia to be used by whites only. The provision
was challenged under the Equal Protection Clause of the Fourteenth Amendment of the
Synopsis of Rule of Law. Operating a park is a public function and therefore, the owner
is subject to the Fourteenth Amendment of the Constitution.
Facts. Upon his death, the senator devised land to Macon, Georgia that was to be used as
a park for whites only. The city was named trustee, and a Board of Managers was created
under the trust to administer the park. The park was eventually opened by the city and
Negroes were allowed to use it. The City argued they could not enforce segregation in a
public park. The Defendants, individual Managers from the Board of Managers
(Defendants) sued to remove the city as trustee so as to effectuate the Senator's will. The
city resigned as the trustee and a state court appointed private trustees to continue the
exclusion of Negroes from the park. The Plaintiffs, a group of Negroes (Plaintiffs),
intervened alleging violations of the Fourteenth Amendment of the Constitution's Equal
protection clause.
Issue. Is operating a park a public function and therefore subjected to the Fourteenth
Amendment of the Constitution?
Held. Yes, black people cannot be excluded because operating a park is a public
function.
Discussion. For years, the city used this park as a tax exemption. Therefore it was a
public park. Just because the Senator gave money to private people to make it whites-
only, does not mean the city can become untwined. Where tradition of municipal control
becomes firmly established, substituting private trustees will not move the park from the
public to private sector.
1 • Parks provide a municipal service that serves an entire community. Mass
recreation is clearly in the public domain.
146 Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc
Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza,
Inc
Citation. 391 U.S. 308 (1968).
Brief Fact Summary. A shopping center owner barred union members from peacefully
picketing outside the shopping center. The specific store being picketed in front of was a
non-union store. The union challenged this exclusion, claiming it was a public function
and that their First Amendment constitutional rights prevail.
Synopsis of Rule of Law. Shopping centers serve a public function and therefore, the
First Amendment of the United States Constitution (Constitution) applies.
Facts. The Plaintiff, Logan Valley Plaza, Inc. (Plaintiff) owned a public mall that was
occupied by Weiss Supermarket (Weiss) and Sears. Weiss employed only nonunion
employees so the Defendant, Amalgamated Food Employees Union Local 590
(Defendant), picketed outside their parcel pickup areas. The picketing involved no
violence. However, there were some instances of congestion in the parcel pickup areas.
The Pennsylvania Court of Common Pleas enjoined all picketing outside the shopping
center. The Pennsylvania Court of Common Pleas based its decision on the Plaintiff's
property rights and that the Defendant's reason for picketing was to compel the
employees of Weiss to join a union. The Pennsylvania Supreme Court affirmed the
injunction on the basis that the picketing was a trespass on the Plaintiff's property.
Issue. Is a privately owned shopping center considered a public location, so that the First
Amendment of the Constitution applies?
Held. The Supreme Court of the United States (Supreme Court) in Marsh v. Alabama,
326 U.S. 501 (1946), held that private property may in some instance be treated as public
property for First Amendment constitutional purposes. The Supreme Court analogized
the private shopping center in this matter, to the business block involved in Marsh. The
Supreme Court also determined that the shopping center was open to the public. Thus, the
state could not by way of trespass laws, hinder access to members of the public who
wished to exercise their First Amendment rights. Specifically, those who wished to
exercise their First Amendment rights for a purpose consistent with how the property is
used. However, this access could be tempered by the state in that the state could regulate
First Amendment speech to prevent interference with the normal use of the property by
others.
Discussion. Peaceful picketing in a location open to the public, specifically a private
shopping center, is protected by the First Amendment of the Constitution. The more an
owner opens his property for public use, the more the owner's rights become limited by
the rights of those who use it.
147 Lloyd Corp. v. Tanner
Lloyd Corp. v. Tanner
Citation. 407 U.S. 551 (1972).
Brief Fact Summary. The Respondent, Tanner (Respondent) and five others, distributed
flyers to mall shoppers inviting them to a meeting protesting the Vietnam War and the
draft.
Synopsis of Rule of Law. The First and Fourteenth Amendments of the United States
Constitution (Constitution) limit state action, not private property owners. Private
property is not considered public property just because the public is invited to use the
property for its intended purpose.
Facts. The Petitioner, Lloyd Corp., Ltd. (Plaintiff), owns a sixty commercial tenant
shopping mall including all land and buildings on a fifty acre lot. Public streets and
sidewalks bound the mall on each side. For the eight years prior to this incident,
Petitioner instituted and upheld a policy strictly forbidding the distribution of flyers
(handbills) on the mall premises. On November 14, 1968, Respondent and 5 others
entered the mall and began distributing invitations to mall shoppers. This was done in a
quiet and orderly fashion. However, one customer complained. As a result, mall security
told the Respondents that they were trespassing and would be arrested unless they left the
premises. Respondents quietly left the premises and began distributing their handbills
from the public sidewalks and streets surrounding the mall.
Issue. Can a privately owned shopping mall prohibit the distribution of flyers and restrict
an individual's freedom of speech rights when the nature of the handouts is unrelated to
the mall's operations?
Held. Yes.
1 • Logan Valley is factually distinct from the instant case. The picketing in
Logan Valley involved was "directly related in its purpose to the use to
which the shopping center property was being put."
2 • It is an infringement of property rights to force a private actor to yield to
an individual's First Amendment constitutional rights when "alternative
avenues of communication exist."
Discussion. A person may exercise freedom of speech rights against another private
entity without restriction or interference. However, a private entity is not required to
provide a forum for such an exercise.
148 Hudgens v. National Labor Relations Board
Hudgens v. National Labor Relations Board
Citation. 424 U.S. 507 (1976).
Brief Fact Summary. Striking union members picketed in front of a retail store that was
located within a shopping mall. The general manager of the mall threatened the picketers
with arrest for trespassing if they would not leave.
Synopsis of Rule of Law. A private shopping mall is not the functional equivalent of a
town and, therefore, not a state actor subject to the requirements of the First Amendment
of the United States Constitution (Constitution).
Facts. Butler Shoe Co. warehouse workers went on strike and decided to picket the nine
retail locations in Atlanta. One of those stores was located within the North DeKalb
Shopping Center, owned by the Petitioner, Hudgens (Petitioner). After the picketers had
been marching for about half an hour, the general manager of the shopping center
threatened to have the strikers arrested if they did not leave.
Issue. Can a private shopping mall prohibit picketing of its tenants by members of the
public?
Held. Yes. Because a shopping mall is not the functional equivalent of a town, it may
restrict First Amendment rights based solely on the content of the speech.
Discussion. The majority overrules the holding of Logan Valley and reasserts the holding
of Lloyd. A mall may look like and function as a small town would, yet it does not have
all of the attributes of a town. So, it is not restricted by the prohibition on content-based
speech review that a state actor would be under in the same circumstances.
149 Shelley v. Kraemer
Shelley v. Kraemer
Citation. 334 U.S. 1 (1948).
Brief Fact Summary. Parcels of land were originally sold with a restrictive covenant
prohibiting non-Caucasians from owning or occupying any portion of them. One lot was
eventually sold to the Appellant, Shelley (Appellant), an African-American, in violation
of the covenant. The remaining landowners sued to enforce the restriction.
Synopsis of Rule of Law. Judicial enforcement of a private agreement is state action.
Facts. In 1911, in St. Louis, 30 land owners agreed to a restrictive covenant attaching to
all 57 parcels in the community.
1 • The signed agreement stipulated that for the next 50 years none of the
parcels could be sold or leased "by people of the Negro or Mongolian
race." At the time African-American families owned 5 lots, one since
1882.
2 • On August 11, 1945, the Appellant, unaware of the covenant, purchased
a parcel of this land from Fitzgerald.
3 • The Appellee, Kraemer (Appellee), brought suit to block the sale and
have the property revert to the previous grantor or a person whom the
court would choose.
Issue. Does judicial enforcement of a private discriminatory agreement amount to state

action?
Held. Yes. Since Commonwealth of Virginia v. Rives (1880), the Supreme Court of the
United States (Supreme Court) has held that a state may act through its different agencies
including the judiciary.
Discussion. The Supreme Court discusses the distinction between direct and indirect state
action. Direct action is what would most commonly come to mind, legislative acts or the
enforcement of common law rules by the judiciary. But, this case introduces indirect state
action that results from a private individual engaging the courts as a means of enforcing a
discriminatory agreement. This holding could be interpreted very broadly to make almost
all private disagreements state action. However, the Supreme Court has chosen to limit
this application to restrictive covenants.
150 Lugar v. Edmondson Oil Co.
Lugar v. Edmondson Oil Co. 457 U.S. 922 (1982).

Brief Fact Summary. The Appellant, Lugar (Appellant), owed the Appellee,
Edmondson Oil Co. (Appellee) money. In order to prevent the Appellant from disposing
of his property before paying his creditors, the Appellee filed an ex parte petition and had
the local sheriff exercise a prejudgment attachment on the Appellant's property.
Synopsis of Rule of Law. Conduct is "fairly attributed" to the state when (1) it is caused
by the exercise of a right created by the state and (2) the actor is one for whom the state is
responsible.
Facts. The Appellant was a lessee-operator of a truck stop who owed his supplier, the
Appellee money.
1 • The state law permitted the Appellee to file an ex parte petition based
solely on the belief that the Appellant might sell his property to avoid
paying creditors.
2 • The state granted the prejudgment writ of attachment and sent the local
county sheriff to exercise it. But, the Appellant maintained possession of
the property.
3 • A hearing was conducted after the attachment to determine the validity
of the attachment. Thirty-four days after the levy, the trial judge dismissed
the attachment for the Appellee's failure to establish the alleged statutory
grounds for the attachment.
4 • The Appellant subsequently sues the Appellee on the grounds that it
acting jointly with the state took his property without due process of the
law
Issue. When is a private person's actions so entangled with the actions of the government
as to be construed as state action?
1 • Has the attachment of the prejudgment lien resulted from the exercise of
a right or privilege having its source in state authority?
2 • Is the Appellee a "state actor"?
Held. In order for the Supreme Court of the United States (Supreme Court) to find state
action, a two-part test must be satisfied. First, the deprivation must be caused by the
exercise of some right or privilege created by the state, or a rule of conduct imposed by
the state, or by a person for whom the state is responsible. Second, the party charged with
the deprivation must be a state actor by virtue of being a state official, by acting together
with or getting significant assistance from a state official, or because his conduct is
otherwise attributable to the state.
151 Lugar v. Edmondson Oil Co.
1 • Yes. Since the ex parte procedure is one dictated by state statute then the
first prong is satisfied.
2 • Yes. "A private party's joint participation with state officials in the
seizure of property is sufficient to characterize that party as a 'state actor'
for purposes of the 14th Amendment." Such "joint participation" does not
require something more than invoking the aid of state officials to take
advantage of the state's procedures.
Discussion. Because the Appellee relied upon the state statute and the help of the sheriff,
his actions were considered 'state action.' Had the sheriff not been involved and the
statute provided a self-help option for creditors, then Appellee would not have been
classified as a 'state actor.'
152 Edmonson v. Leesville Concrete Co.
Edmonson v. Leesville Concrete Co. 500 U.S. 614 (1991).
Brief Fact Summary. The Appellant, Edmonson (Appellant), was injured at a

construction site and brought suit against his employer, the Appellee, Leesville Concrete
Co. (Appellee), in Federal District Court. During voir dire, the Appellee used two of its
three preemptory challenges to excuse black persons. The trial proceeded with 11 whites
and 1 black. They found Appellant to be contributorily negligent and awarded him
$18,000 in damages.
Synopsis of Rule of Law. Exercising peremptory challenges in a civil dispute is a form
of state action by a private actor.
Facts. Appellant was a construction worker who was injured on the job while working
for Appellee. Appellant is suing Appellee for negligence, claiming that an employee
allowed a truck to pin him against construction equipment. During voir dire, the Appellee
used 2 of 3 peremptory challenges to excuse black persons from the jury. Appellant
requests an explanation for the excuses that is not race-based. But, the United States
District Court for the Western District of Louisiana denied the request because this was a
civil trial.
Issue. May a private litigant in a civil case use preemptory challenges to exclude jurors
based on race?
Held. No.
1 • Discriminating on the basis of race in a civil trial versus a criminal trial
is no less harmful to the potential juror. It violates the equal protection
rights of the juror.
2 • Because the attorney for Appellee used the preemptory challenges and
the courtroom to discriminate he was, according to the Lugar test, a state
actor.
Discussion. The majority applies the two-part test as described in Lugar to extend the
holding in Batson v. Kentucky (1986) to civil litigation. Clearly, peremptory challenges
were created exclusively for courtroom use and are, therefore, state action. But, here, the
Supreme Court of the United States (Supreme Court) provides three attributes that
determine whether conduct is governmental in nature: (1) extent to which the actor relies
on governmental assistance; (2) whether the actor is performing a traditional
governmental function, and (3) whether the injury caused is aggravated by the incident.
153 Burton v. Wilmington Parking Authority
Burton v. Wilmington Parking Authority
Citation. 365 U.S. 715 (1961).
Brief Fact Summary. A coffee shop, located in a government owned parking garage,
refused to serve the Appellant, Burton (Appellant), simply because he was black.
Synopsis of Rule of Law. A private entity becomes a state actor when a "symbiotic"
relationship exists between the state and the individual, each benefits and is
interdependent upon the other.
Facts. This is a case of racial discrimination by a private entity on government property.
Eagle Coffee Shoppe, Inc. is a restaurant located in a parking garage owned and operated
by the Appellee, Wilmington, Delaware Parking Authority (Appellee). The statutory
purpose of the Appellee is to provide adequate parking facilities for the public. In order to
fund the construction of the parking facility in question, the Appellee entered into
commercial leases with prospective tenants. In August 1958, the Appellant parked his car
in the garage and proceeded to enter the front of the Coffee Shoppe where he was
promptly refused service because of his race.
Issue. Is the lessee of government property a state actor?
Held. Yes.
1 • The construction and maintenance of the building were derived
completely from governmental funds and the Appellee was responsible as
the facility landlord.
2 • The Coffee Shoppe received a benefit from the state by being located in
the parking garage. At the same time the state received the benefit of
increased revenue from the restaurant's customers. Therefore, a "symbiotic
relationship" existed, whereby the state "elected to place its power,
property and prestige behind the admitted discrimination."
3 • When a state leases its property in the manner present in this case, then
the 14th Amendment of the United States Constitution (Constitution)
applies as if it were a covenant written into the lease agreement.
Discussion. The Appellee affirmed the action of the Coffee Shoppe by not taking a stand
and ending the lease. The result is that the Coffee Shoppe became an extension of the
Appellee. The amount of governmental entanglement is measured by the mutual benefit
gained by each from the relationship. Because the restaurant was determined to be an
"integral part" of the garage by directly contributing to the financial success of the
Appellee, it was declared a state actor subject to the mandates of the 14th Amendment of
the Constitution.
154 Moose Lodge No. 107 v. Irvis
Moose Lodge No. 107 v. Irvis
Citation. 407 U.S. 163 (1972).
Brief Fact Summary. The Appellee, Irvis (Appellee), requests that the Pennsylvania
Liquor Board revoke the Appellant, Moose Lodge's (Appellant), liquor license. Appellee
claims that because the state of Pennsylvania issued the license, Appellant's refusal to
serve him was a "state action."
Synopsis of Rule of Law. Being licensed by the state does not automatically convert
private action into state action.
Facts. This is an action for injunctive relief under 42 U.S.C. § 1983.
1 • Appellant is a private club that is located in its own building. Only club
members or guests are permitted on the premises.
2 • Appellee alleges that by issuing a liquor license, the state is entangled
with Appellant so that the Equal Protection Clause of the 14th
Amendment of the United States Constitution (Constitution) forbids its
discriminatory membership practice.
Issue. Is the issuance of a state license to a private entity, enough to convert the private
actor into a state actor?
Held. No. The regulatory scheme enforced by the Pennsylvania Liquor Control Board
does not sufficiently implicate the state in the discriminatory guest policies of the
Appellant to make it a "state action."
1 • The Liquor Control Board plays no part in establishing or enforcing the
club's membership or guest policies.
2 • The issuance of liquor licenses according to the state law does not
discriminate against racial minorities. Their right to apply for, purchase, or
be served liquor is not affected by the state law. Therefore, there is no
symbiotic relationship between the practices of Appellant and the state as
was seen in Burton.
Dissent. Justice William Douglas (J. Douglas) wrote the dissent and was joined by
Justice Thurgood Marshall (J. Marshall). They believed that the action of Appellant
amounted to state action because of the regulatory scheme and license quota system in
play at the time
1 • The license regulatory scheme includes a section requiring all club
licensees to adhere to the state Constitution and by-laws. The Justices
conclude that this attribute alone is not enough to make them disagree with
the majority.
155 Moose Lodge No. 107 v. Irvis
1 • The licensing scheme has an incurable flaw, a complex quota system. At
the time of this case, the city of Harrisburg had received its full allotment
of liquor licenses. The ability of blacks to obtain liquor licenses or be
served was restricted by the actions of the state. Hence, the actions of
Appellant were state action.
Discussion. The majority indicates that to expand previous decisions to allow any state
support to concert a private actor to a state actor is too broad a reading. This would
eliminate the distinction between state and private action and make all private individuals
subject to the Equal Protection clause.
156 Norwood v. Harrison
Norwood v. Harrison
Citation. 413 U.S. 455 (1973).
Brief Fact Summary. The Appellants, Delores Norwood and others (Appellants), are the
parents of four schoolchildren who are challenging the state of Mississippi's textbook
lending program. They claim that the program encourages discrimination by providing
textbooks to the children who attend private, segregated schools.
Synopsis of Rule of Law. The Equal Protection Clause of the United States Constitution
(Constitution) is violated when a state provides aide to students of private, segregated
schools because it encourages continued racial discrimination.
Facts. The number of private schools in Mississippi has increased over the years since
mandatory desegregation.
1 • The state of Mississippi has a 33 year-old program that provides free
textbooks to all students in both public and private schools. Since the
program began, the number of all white private schools greatly increased.
2 • The Appellees, Harrison and other (Appellees), claim that the state must
provide assistance to private schools that is equivalent to assistance
provided to public schools.
3 • The Appellants filed a class action on behalf of all the students in
Mississippi to enjoin the textbook lending program. The Appellants
argued that by supplying the textbooks to the segregated private schools,
the state was directly supporting segregated education, in violation of the
student's constitutional rights to fully desegregated schools.
4 • The district could found that the lending program did not violate the
Constitution.
Issue. Does a state funded program that benefits both public and private school students
equally, violate the Fourteenth Amendment of the Constitution simply because some of
the private schools have racially discriminatory admissions practices?
Held. Yes. The Supreme Court of the United States (Supreme Court) first observed that
in the past, the Supreme Court had enjoined state tuition grants to students attending
racially discriminatory private schools. The Supreme Court found that the textbook
lending program was analogous to those tuition grants. A textbook lending program is a
form of tangible, financial assistance, which benefits the private schools and supports the
discrimination exercised by those schools. Even though the intent of the program was not
to discriminate, but to help children in the state, the effect of the assistance results in
discrimination and is, therefore, a violation of the Equal Protection Clause of the
Constitution. The Supreme Court stated "A State's constitutional obligation requires it to
157 Norwood v. Harrison
steer clear, not only of operating the dual system of racially segregated schools, but also
of giving significant aid to institutions that practice racial or other invidious
discrimination."
Discussion. The aide provided by the state is a vital component of education and
necessary for the private schools to carry out their goals. By supplying these basic
instruments, the government is endorsing the practice of segregation. Equal Protection
violations will result when either the effect or the intention of the state action is
discrimination.
158 Rendell-Baker v. Kohn
Rendell-Baker v. Kohn
Citation. 457 U.S. 830 (1982).
Brief Fact Summary. The Petitioner, Rendell-Baker (Petitioner), brings suit because she
was fired from her position as a school counselor in retaliation for her opinion of
administrative policy. Five others were later fired after they voiced their intention to form
a union.
Synopsis of Rule of Law. Private conduct is not state action simply because the private
entity serves a public function.
Facts. The school in this case provides education to students that have difficulty adhering
to the traditional curriculum of the public school districts.
1 • The Respondent, Kohn (Respondent), is the administrative director of
the privately owned school who accepts students with drug, alcohol, or
behavioral problems from local public high schools.
2 • Students are referred to the school under Massachusetts Acts of 1972 and
the school districts pay the tuition for the referred students. These public
funds accounted for 90+% of the school's operating budget.
3 • In 1977, Petitioner was fired by Respondent for her role in a student-staff
council tasked with making hiring decisions. In the spring of 1978, five
other teachers were fired for writing a letter to the school's board of
directors supporting Respondent's dismissal.
4 • The students responded by picketing the home of the president of the
board and were threatened with suspension. A local paper was made aware
of the situation and the 5 teachers told the president they were going to
form a union.
Issue. Is a private school's dismissal of its staff considered state action when the majority
of its students' tuition is provided by the state?
Held. No. The decision to discharge the Petitioners was not compelled or influenced by
any state regulation. Although the general operations of the school were regulated by the
state, specific personnel matters were left to the school. The most intrusive regulation by
the state was that it had the power to approve those hired as vocational counselors.
Dissent. Because the school receives almost all of its funds from the state and is heavily
regulated, a close nexus exists between the school and the state. So, the school's action
must be considered state action. This analysis relies on the previous decisions that define
a symbiotic relationship and the entanglement between the state and a private actor.
159 Rendell-Baker v. Kohn
Discussion. Just by providing funding to the school and general operating regulations the
state is not running the school. The school is a private entity similar to a corporate
contractor that relies on numerous governmental contracts for business. The actions of
the school are not an extension of the state as it makes independent management
decisions.
160 Blum v. Yaretsky
Blum v. Yaretsky
Citation. 457 U.S. 991 (1982).
Brief Fact Summary. The Respondent, Yaretsky (Respondent), is a Medicaid recipient
who was transferred from a nursing home to a lower level of care in a health related
facility after case review by the nursing home's utilization review committee. Respondent
alleges that this transfer was done in violation of his rights and federal law under the Due
Process Clause of the 14th Amendment of the United States Constitution (Constitution).
Synopsis of Rule of Law. Private entity decisions are not converted to state action
simply because the state reacts to the decision.
Facts. Medicaid recipients have nursing home stays paid for by the City of New York if
they meet specific eligibility criteria.
1 • Federal regulations require each nursing facility to establish a utilization
review committee (URC) of physicians who periodically review patient
cases for appropriate patient placement.
2 • The URC may decide that a patient does not need the intensive level of
care found in the nursing home and transfer the patient to a lower level of
care.
3 • In 1975 the URC decided that Respondent should be transferred to a
health related facility providing a reduced level of care. Respondent was
transferred without notice or benefit of administrative hearing to challenge
the decision.
Issue. Did the decision by a nursing home committee to transfer a Medicaid patient to
another facility violate his Due Process rights under the Constitution?
Held. No. The decision was based on independent medical judgment made by private
parties. The fact that the state responded by adjusting the benefits does not make the state
responsible for the decision to transfer the patient. There is no indication that these
decisions were influenced by the state's obligations to adjust payment accordingly.
Dissent. The majority oversimplified the problem by mischaracterizing the facts. The
state is heavily involved in the placement of the patients, as this is just a legislative means
of cost containment. The state encourages these "medical judgments" to help achieve its
legislative goals. So, the state and the nursing homes are closely intertwined and
interdependent for their financial survival.
Discussion. The majority provides a nice review of the three axioms for determining
when there is state action by a private entity. They are as follows:
161 Blum v. Yaretsky
1 • Being subject to state regulation does not convert a private action into
state action,
2 • A state is responsible for a private decision only when it has exercised
coercive power or has provided significant encouragement of the decision,
or
3 • The private entity has exercised powers that are "traditionally the
exclusive prerogative of the state."
162 Reitman v. Mulkey
Reitman v. Mulkey
Citation. 387 U.S. 369 (1967).
Brief Fact Summary. The state of California passed Proposition 14 preventing the
government from interfering in any case of private discrimination as it related to the
ownership or possession of property. The Respondents, Mr. and Mrs. Mulkey
(Respondents), sued the Petitioner, Reitman (Petitioner), under sections 51 and 52 of the
California code for refusing to rent them an apartment due to their race.
Synopsis of Rule of Law. State action will exist when the purpose of state legislation is
to encourage racial discrimination.
Facts. The Respondents tried to rent an apartment and were rejected by the Petitioner, a
private owner because of their race. At the time the Respondents attempted to rent the
apartment, §§51 and 52 of the California Civil Code provided that all persons are free and
equal and are entitled to the full and equal accommodations, advantages, facilities,
privileges, or services in all business establishment of every kind whatsoever. Pursuant to
these statutory provisions, the Respondents sought injunctive relief and damages against
the Petitioner.
1 • Proposition 14 was passed by California voters after the Respondents
filed their complaint against the Petitioner. Proposition 14 states that
neither the state of California nor its agencies would interfere with a
private person's choice to discriminate against others when selling or
leasing property.
2 • The intent of Proposition 14 was to nullify previous laws that protected
the rights of racial minorities to own and possess property.
3 • The Petitioner moved for summary judgment and argued that Proposition
14 had rendered §§51 and 52 of the California Civil Code null and void.
The trial court granted the Petitioner's summary judgment motion. The
California Supreme Court held that Proposition 14 was invalid because it
denied equal protection of the laws guaranteed by the Fourteenth
Amendment of the United States Constitution (Constitution).
Issue. Did Proposition 14 invalidly involve the state in racial discriminations in the
housing market?
Held. Yes. The Supreme Court of the United States (Supreme Court) affirms the holding
of the California Supreme Court.
1 • This provision would involve the state in private racial discriminations to
an unconstitutional degree. The right to discriminate was now immune
from state regulation at any level and was, therefore, endorsed by the state.
163 Reitman v. Mulkey
1 • The Supreme Court observed that California, by abandoning its open
housing statutes in favor of a supposed position of neutrality, the state has
encouraged private discrimination.
Dissent. Proposition 14 does not foster discrimination, as it is neutral on its face. The
judiciary should not take it upon itself to strike down a rule that was passed by the voters
without "pervasive evidence of an invidious purpose or effect." The majority's decision is
constitutionally unsound.
Discussion. This legislation went beyond just repealing existing anti-discrimination laws.
The effect was to make private housing discrimination untouchable by the state
government. As a result, the state is actually encouraging such activity to take place.
164 Brentwood Academy v. Tennessee Secondary School Athletic Assn.
Brentwood Academy v. Tennessee Secondary School Athletic Assn.
Citation. 531 U.S. 288
Brief Fact Summary. An association of secondary schools in Tennessee, in charge of
regulating interscholastic sports, was comprised of 84% of all public schools in the state.
Various school officials played integral roles in the association.
Synopsis of Rule of Law. "[T]he association's regulatory activity may and should be
treated as state action owing to the pervasive entwinement of state school officials in the
structure of the association, there being no offsetting reason to see the association's acts
in any other way."
Facts. The Respondent, Tennessee Secondary School Association (the "Respondent"), is
a not-for-profit membership corporation that regulates interscholastic supports among the
public and private high schools in Tennessee. The Respondent's members include 84% of
Tennessee's public schools, 290 of them, compared to 55 private schools. Additionally,
"[t]he Association's rulemaking arm is its legislative council, while its board of control
tends to administration. The voting membership of each of these nine-person committees
is limited under the Association's bylaws to high school principals, assistant principals,
and superintendents elected by the member schools, and the public school administrators
who so serve typically attend meetings during regular school hours." Tennessee's State
Board of Education (the "Board") in 1972 went so far as "to adopt a rule expressly
'designat[ing]' the Association as 'the organization to supervise and regulate the athletic
activities in which the public junior and senior high schools in Tennessee participate on
an interscholastic basis.' " The Board has also approved on several occasions the
recruiting rule applicable to this matter. Although the original recruiting rule was dropped
in 1996, the Respondent adopted the following statement in its place: "recogniz[ing] the
value of participation in interscholastic athletics and the role of [the Association] in
coordinating interscholastic athletic competition," while "authoriz[ing] the public schools
of the state to voluntarily maintain membership in [the Association]". This matter stems
from a 1997 proceeding against the Petitioner, Brentwood Academy (the "Petitioner"), a
private parochial school and member of the Respondent association. The Respondent
found that the Petitioner violated a rule by exercising "undue influence" in recruiting. The
Respondent assessed various penalties on the Petitioner, and the Petitioner sued alleging
state action in violation of the First and Fourteenth Amendments of the United States
Constitution (the "Constitution").
Issue. "[W]hether a statewide association incorporated to regulate interscholastic athletic
competition among public and private secondary schools may be regarded as engaging in
state action when it enforces a rule against a member school"?
Held. Yes. "[T]he association's regulatory activity may and should be treated as state
action owing to the pervasive entwinement of state school officials in the structure of the
association, there being no offsetting reason to see the association's acts in any other
way."
1 • Justice David Souter ("J. Souter"), writing for the majority, recognized that
not only actions directly perpetrated by the state are considered state actions.
Instead, the majority recognized "if the Fourteenth Amendment is not to be
displaced, [ ] its ambit cannot be a simple line between States and people
operating outside formally governmental organizations, and the deed of an
ostensibly private organization or individual is to be treated sometimes as if a
State had caused it to be performed." Consequently, "state action may be
found if, though only if, there is such a 'close nexus between the State and the
challenged action' that seemingly private behavior 'may be fairly treated as
that of the State itself.' "
2 • J. Souter then discussed various facts that the Supreme Court of the United
States (the "Supreme Court") has examined to determine if the requisite nexus
exists. Those facts include when a challenged activity "results from the State's
exercise of 'coercive power,' " "when the State provides 'significant
encouragement, either overt or covert,' " "or when a private actor operates as a
'willful participant in joint activity with the State or its agents[.]" State action
has also been found where "a nominally private entity … is controlled by an
'agency of the State' ", "when it has been delegated a public function by the
State" and "when it is 'entwined with governmental policies,' or when
government is 'entwined in [its] management or control' ".
3 • The majority then examined [NCAA v. Tarkanian] and recognized "[s]ince it
was difficult to see the NCAA, not as a collective membership, but as
surrogate for the one State, we held the organization's connection with Nevada
too insubstantial to ground a state-action claim." However, J. Souter
recognized dicta from [Tarkanian] that arguably would apply to the facts
before it. "The situation would, of course, be different if the [Association's]
membership consisted entirely of institutions located within the same State,
many of them public institutions created by the same sovereign."
4 • Applying [Tarkanian] here, J. Souter recognized that 84% of all public
schools in Tennessee are members of the Respondent association. "In sum, to
the extent of 84% of its membership, the Association is an organization of
public schools represented by their officials acting in their official capacity to
provide an integral element of secondary public schooling." Further, "[t]here
would be no recognizable Association, legal or tangible, without the public
school officials, who do not merely control but overwhelmingly perform all
but the purely ministerial acts by which the Association exists and functions in
practical terms."
Dissent. Justice Clarence Thomas ("J. Thomas") drafted a dissenting opinion with which
Justice William Rehnquist ("J. Rehnquist"), Justice Antonin Scalia ("J. Scalia") and
Justice Anthony Kennedy ("J. Kennedy") joined. J. Thomas observed, "[w]e have never
found state action based upon mere 'entwinement.' Until today, we have found a private
organization's acts to constitute state action only when the organization performed a
public function; was created, coerced, or encouraged by the government; or acted in a
symbiotic relationship with the government. The majority's holding--that the Tennessee
Secondary School Athletic Association's (TSSAA) enforcement of its recruiting rule is
state action--not only extends state-action doctrine beyond its permissible limits but also
encroaches upon the realm of individual freedom that the doctrine was meant to protect."
1 • J. Thomas first goes through the attributes of the Respondent association and
determines that they "cannot fairly be attributed to the state." The court then
concludes that the role the Respondent association plays by organizing and
administering interscholastic contests "is neither a traditional nor an exclusive
public function of the States." Further, Tennessee has not "exercised coercive
power or ... provided such significant encouragement [to the TSSAA], either
overt or covert" to constitute state action. Finally, a "symbiotic relationship"
does not exist between the state and the Respondent association.
Discussion. It is interesting to recognize that the dissent argues the "entwinement"

doctrine that the majority advocates is entirely new. Specifically, the dissent worries "if
the majority's new entwinement test develops in future years, it could affect many
organizations that foster activities, enforce rules, and sponsor extracurricular competition
among high schools--not just in athletics, but in such diverse areas as agriculture,
mathematics, music, marching bands, forensics, and cheerleading. Indeed, this
entwinement test may extend to other organizations that are composed of, or controlled
by, public officials or public entities, such as firefighters, policemen, teachers, cities, or
counties."
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168 Allgeyer v. Louisiana
Allgeyer v. Louisiana
Citation. 165 U.S. 578 (1897).
Brief Fact Summary. An insurance company contracted to insure property within the
Plaintiff state, Louisiana (Plaintiff) with a citizen of the state. The contract was formed in
New York, but a notification of coverage was written in the Plaintiff state. The Plaintiff
state's constitution prohibited foreign insurance companies from doing business in the
state if they were not incorporated in the state.
Synopsis of Rule of Law. A state may not legislate in such a way as to deprive its
citizens of liberties guaranteed by the Due Process Clause of the United States
Facts. The Plaintiff state had an article in its constitution prohibiting foreign corporations
from doing business in the Plaintiff state, unless they had a place of business and an
authorized agent within the state.
1 • Atlantic Mutual Insurance Company of New York (Atlantic) wrote an
insurance policy to cover property located within the Plaintiff state. This
contract was formed in New York and was outside the jurisdiction of the
Plaintiff state.
2 • A letter of notification of coverage was written in the Plaintiff state and
sent to a local citizen. As a result, the state claimed that the Atlantic was
conducting business in the Plaintiff state in violation of the Plaintiff state's
constitution.
3 • The Defendant, Allgeyer (Defendant), purchased the aforementioned
marine insurance policy from Atlantic to insure goods shipped from New
Orleans. The Defendant was convicted of violating the Plaintiff state's law
and order to pay a fine. The Louisiana court upheld the Defendant's
conviction.
Issue. Is Article 236 of the Louisiana state constitution a violation of the Fourteenth
Held. Yes. The statute as written does not provide due process of law because it prohibits
an act that the Plaintiff had a right to do under the Constitution. The term "liberty" in the
Due Process Clause embraces "the right of the citizen to be free in the enjoyment of all
his faculties; to be free to use them in all lawful ways; to live and work where he will; to
earn his livelihood by any lawful calling; to pursue any likelihood or avocation, and for
that purpose to enter into all contracts which may be proper, necessary and essential to
his carrying out to a successful conclusion the purposes above mentioned." This is an
improper and illegal interference with the conduct of a citizen's right to contract and carry
out the terms of the contract.
169 Allgeyer v. Louisiana
Discussion. Here the Supreme Court of the United States (Supreme Court) chose to
analyze the problem from the standpoint of the citizen rather than the corporation. The
state maintains policing power in relationship to the corporation. But, it cannot legislate
in such a manner as to deny an individual's liberty. The Supreme Court defines liberty to
include the right to contract.
170 Lochner v. New York
Lochner v. New York
Citation. 198 U.S. 45 (1905).
Brief Fact Summary. The Petitioner, Lochner (Petitioner), was convicted of a
misdemeanor for violating the New York state statute that limited the number of hours a
baker could work in a bakery.
Synopsis of Rule of Law. A state may interfere with a person's right to contract for his
labor, only if such interference is reasonably related to a legitimate purpose such as the
protection of public health, safety or welfare.
Facts. New York passed a statute that limited the number of hours a baker could work to
no more than 60 per week, or 10 hours per day. Petitioner worked more than the
stipulated amount and was convicted of a misdemeanor.
Issue. Is the state's interference with a baker's right to make a living by limiting the
number of hours worked in a week or day a fair, reasonable, and appropriate exercise of
its police power?
Held. No. There is no reasonable ground for interfering with the liberty of person or right
to contract, by determining the hours a baker can work.
1 • The right to purchase or sell labor is part of the liberty protected by the
14th Amendment of the United States Constitution (Constitution).
2 • Baker's are persons capable of entering into and making contracts for the
sale of their labor and skills.
3 • The law as it was passed is not within the police power of the state
because it does not relate to the public health or the health of bakers.
Dissent. Both dissents see the statute as an appropriate exercise of the state's police
power, designed to protect the health of the delicate manufacturing baker.
1 • Justice Oliver Holmes (J. Holmes) disagrees with the broad definition of
"liberty." He sees this statute as the beginnings of labor laws meant to
protect the health of the worker by prohibiting excessively long
workweeks.
2 • Justice John Harlan (J. Harlan), Justice Byron White (J. White), and
Justice Day (J. Day) felt that the right to contract may be infringed upon
for the purpose of protecting a person's health. The baker is described as a
fragile worker who is susceptible to more health ailments because of his
unusual working conditions and habits.
171 Lochner v. New York
Discussion. The majority characterizes the statute as an interference with a person's right
to contract and earn a living. The idea that a baker is an occupation that puts the public at
risk is dismissed as a simple notion. The position is compared to those who work in a
steel foundry and coal mine. Clearly, those workers are put in and put others in danger
when extremely fatigued.
172 Coppage v. Kansas
Coppage v. Kansas
Citation. 236 U.S. 1 (1915).
Brief Fact Summary. The Petitioner, Coppage (Petitioner), was found guilty of violating
the Kansas state law that prohibited employers from asking employees not to join or
remain a member of a labor union as a condition of employment.
Synopsis of Rule of Law. States are prohibited from the arbitrary interference with a
person's freedom to contract because of the Due Process Clause of the 14th Amendment
Facts. In 1903, the Kansas legislature passed an act designed to encourage the
unionization of employees. The act prohibited employers from making jobs conditioned
upon an employee's refusal to join or continue to participate in a union.
Issue. Can a state prevent an employer from making employment conditioned upon an
individual's status as a union member?
Held. No. Employment relations are the same as a contractual arrangement. Both
contracting parties have the right to terminate the employment 'at-will' for any reason. At
the onset, the employee has the choice to refuse employment if union membership is
more valued than the position offered.
Discussion. The Supreme Court of the United States (Supreme Court) indicates that the
decision of a person to accept employment, while refraining from joining a union is not
infringing upon any freedom. Both the employer and employee are free to choose how
their relationship will be defined.
173 Muller v. Oregon
Muller v. Oregon
Citation. 208 U.S. 412 (1908).
Brief Fact Summary. The Petitioner, Muller (Petitioner), was found guilty of violating
Oregon state statute that limited the length of the workday for women in laundry
facilities.
Synopsis of Rule of Law. The general right to contract is protected by the United States
Constitution (Constitution), but this liberty is not absolute.
Facts. In 1903, Oregon passed a statute limiting the hours a woman can work to just 10
hours if she was employed in a laundry, factory or mechanical manufacturer. The
reasoning for the law was, "the physical organization of women, her maternal functions,
the rearing and education of children and the maintenance of the home."
Issue. Is a state statute limiting the length of a woman's workday constitutional?
Held. Yes. Women, like minors, are a special class of worker that needs protection. This
statute is within the state's police power to protect the health of the general public
because the physical well-being of women is paramount to the production of healthy
offspring.
Discussion. The Supreme Court of the United States (Supreme Court) defines women as
a class needing protection based on the traditional concepts of a woman's role in society.
The discussion focuses heavily on the physical weakness of women and their inherent
reliance on men for support. Women are compared to children and implied not
completely competent to enter into their own labor contracts.
174 Adkins v. Children's Hospital
Adkins v. Children's Hospital
Citation. 261 U.S. 525 (1983).
Brief Fact Summary. In 1918, the District of Columbia passed a statute that established
a minimum wage for women and children, the constitutionality of which was challenged
in this matter.
Synopsis of Rule of Law. The freedom to contract may be restricted only when
exceptional circumstances exist as they relate to the police powers of a state.
Facts. The District of Columbia imposed a law upon all employers forcing them to pay
their women and child workers a predetermined minimum wage.
Issue. Is the fixing of a minimum wage for children and women constitutional?
Held. No. It is inappropriate to restrict a woman's freedom to contract for her labor
service when such restriction is not equally applied to a man. The payment of a minimum
wage puts a burden on the employer that is completely unrelated to his business.
Discussion. This case reflects the change in society's regard for the female worker. The
Supreme Court of the United States (Supreme Court) expressly recognizes that a mature
woman has the same contracting competence as a man. The Supreme Court decides to
side with the business owners and the economic consequence that a minimum wage
would have on them. Specifically, the closing of businesses is mentioned as a detractor
and weighed against the potential thriftiness or lack thereof of women workers.
175 Weaver v. Palmer Bros. Co.
Weaver v. Palmer Bros. Co.
Citation. 270 U.S. 402 (1926).
Brief Fact Summary. A consumer protection act was passed that prohibited the use of
shoddy as a filler for comforters. The Appellee, Palmer Bros. Co. (Appellee), is a
manufacturer of comforters that use this material as filler and allege that the act is
unconstitutional.
Synopsis of Rule of Law. A restriction on the manufacturing of items is an interference
with the contractual bargain between buyer and seller that can only be upset in the
interests of state policing power.
Facts. Appellee manufactures nearly 3 million comforters a year of which 750,000 are
filled with shoddy.
1 • Shoddy is comprised of clippings and leftover material from cutting
tables. Sometimes the shoddy will be made of secondhand garments and
soiled rags.
2 • The government was concerned that these soiled items posed a threat to
the health of the public who purchased comforters with this type of
stuffing.
3 • Scientific studies showed that any bacteria were eliminated in the
sterilization process performed at the end of manufacturing.
Issue. Does the provision forbidding the use of shoddy in comforters violate the United
States Constitution (Constitution)?
Held. Yes. All evidence shows that the any harm to the health of the public is eliminated
during sterilization. So, the restraint is unreasonable and arbitrary.
Dissent. If the legislature saw the spread of disease as a great danger and the use of
shoddy was a prevalent practice in the manufacture of comforters, then it was justified in
prohibiting the use of shoddy.
Discussion. The provision is ruled unconstitutional because the state's concern and intent
for instituting the law was eliminated as a concern by the results of scientific studies.
176 Nebbia v. New York
Nebbia v. New York
Citation. 291 U.S. 502 (1934).
Brief Fact Summary. The Respondent, New York (Respondent), established a minimum
retail price for milk. The Petitioner, Nebbia (Petitioner), was charged with violating this
law when he sold 2 quarts of milk below the state minimum.
Synopsis of Rule of Law. A state is free to adopt any reasonable economic policy
deemed necessary to promote public welfare and to adopt legislation to serve this
purpose.
Facts. The state minimum milk price was 9¢ a quart. But, Petitioner, a grocery store
owner, sold 2 quarts for 13¢, a clear violation of the statute.
Issue. Does a statute establishing a minimum retail price for milk violate the
Constitution?
Held. No. This law was passed to curtail the severe price-cutting that occurred as a result
of a milk surplus. The law is a reasonable means of preventing "ruthless competition
from destroying the market."
Discussion. The modern approach to analyzing the constitutionality of social and
economic regulations by states is to presume their validity unless no reasonable set of
facts support the reasoning, or unless there is no rational relationship to the articulated
purpose of the legislation. The burden of proof is on the individual challenging the law,
not the state.
177 West Coast Hotel Co. v. Parrish
West Coast Hotel Co. v. Parrish
Citation. 300 U.S. 379 (1937).
Brief Fact Summary. Washington instituted a state wage minimum for women and
minors. The Appellant, West Coast Hotel (Appellant), paid the Appellee, Parrish
(Appellee), less than this minimum.
Synopsis of Rule of Law. Wage and hour laws generally do not violate the Due Process
Clause of the United States Constitution (Constitution).
Facts. The Appellee was a maid who worked for less than the state minimum of $14.50
per 48-hour week. She brought suit to recover the difference in pay from the Appellant.
Issue. Is the fixing of minimum wages for women and minors constitutional?
Held. Yes. This case overrules Adkins v. Children's Hospital.
1 • The exploitation of a class of workers who are at a disadvantaged
bargaining position is in the best interest of the health of the worker and
economic health of the community.
Discussion. The Supreme Court of the United States (Supreme Court) reverts to
reasoning that women are in an inferior position and need to be protected from those who
might try to take advantage of the situation. Furthermore, the state is justified in adopting
such legislation to protect the rest of the community from the burden of supporting
economically disadvantaged workers. It is important to note that the Depression colored
the Supreme Court's analysis.
178 United States v. Carolene Products Co.
United States v. Carolene Products Co.
Citation. 304 U.S. 144 (1938).
Brief Fact Summary. In 1923, Congress passed an act that prohibited the interstate
shipment of skimmed milk mixed with any fat other than milk fat. This was done to
prevent potential health hazards to the consuming public.
Synopsis of Rule of Law. When evidence exists in support of economic or social
legislation, then it is not the place of the judiciary to second-guess the legislative
reasoning. Even if there is no evidence, the existence of supportive facts is to be
presumed.
Facts. The Appellee, Carolene Products Co. (Appellee), was convicted of the commercial
shipment of "Milnut." This is a product composed of skimmed milk and coconut oil
blended together to imitate whole milk or cream.
1 • Before passing the regulation, Congress reviewed over 20 years of
evidence indicating that a mixture such as "Milnut" posed a danger to the
public health because of the stripping of essential healthful elements.
Issue. Does the Filled Milk Act of 1923 violate the Due Process clause of the 5th
Amendment of the United States Constitution (Constitution)?
Held. No. There is sufficient evidence to support the reasoning of Congress that this type
of product is a danger to public health and should be eliminated from the market.
Discussion. The Supreme Court of the United States (Supreme Court) provides complete
deference to the decision making of the legislature and abstains from reviewing data in
support of the decision. It is sufficient that a rational basis for the decision be identified.
179 Williamson v. Lee Optical of Oklahoma, Inc.
Williamson v. Lee Optical of Oklahoma, Inc.
Citation. 348 U.S. 483 (1955).
Brief Fact Summary. The Oklahoma legislature passed a statute prohibiting opticians
from fitting or duplicating eyeglass lenses without a prescription from an ophthalmologist
or optometrist.
Synopsis of Rule of Law. A law need not be logically consistent with its aims to be
constitutional. It just needs to be a rationally related to a legitimate government interest.
Facts. The District Court of Oklahoma held that the regulation limiting the extent of an
optician's practice violated the United States Constitution (Constitution) because it was
not reasonable or rationally related to the health and welfare of the people.
Issue. Is a statute limiting the function of an optician constitutional?
Held. Yes. The Supreme Court of the United States (Supreme Court) will no longer use
the Due Process Clause or the 14th Amendment to strike down state laws, regulatory of
business and industrial conditions, because they run afoul of a particular school of
thought.
Discussion. This is an example of how low the burden was eventually lowered for
rational basis. Here, the Supreme Court provides its own scenarios of "could have
happened" during the legislative decision making process. The reason for the regulation
does not matter to the Supreme Court. As long as it is constitutional, then it is a valid
reason for the law.
180 BMW of North America, Inc. v. Gore
BMW of North America, Inc. v. Gore
Citation. 517 U.S. 559 (1996).
Brief Fact Summary. The Petitioner, BMW (Petitioner), sold slightly damaged, new
cars for full value and never told the buyers about the damage. The Respondent, Gore
(Respondent), purchased one these damaged vehicles and was awarded actual damages,
plus $4 million punitive damages.
Synopsis of Rule of Law. Punitive damages may be imposed to further a state's
legitimate interest in punishing unlawful conduct and deterring its repetition as long as
they are not "grossly excessive."
Facts. In 1990, the Respondent purchased a new BMW for $40,000 from an authorized
dealer in Alabama. After 9 months he decided to take the car to a detailer to have it
shined and cleaned. This specialist informed Respondent that his car had been painted to
cover minor damage to the body.
1 • At trial, the Petitioner admitted that it was company policy to repair any
damage to vehicles during shipping. If the cost of the repair exceeded 3%
of the car's retail value, it was placed in company service and later sold as
used. But, if the cost of repair was less than 3% the car was sold at full
retail value.
2 • Actual damages to Respondent were estimated at 10% of the car value
based on expert testimony. Punitive damages were determined by
estimating that Petitioner had sold approximately 1,000 cars in Alabama
for more than they were worth.
3 • On appeal, the Supreme Court of Alabama found Petitioner's conduct
reprehensible and that the punitive damage award would not have a
substantial impact on the financial viability of the company. However, the
Court found the computation of the amount was in error and reduced the
award to $2 million accordingly.
Issue. Does an award of $2 million in punitive damages to the purchaser of one car
exceed the constitutional limit?
Held. Yes. The award is "grossly excessive" as measured by (i) the degree of
reprehensibility of the non-disclosure; (ii) the disparity between the harm or potential
harm and (iii) the punitive damage award and the difference between the remedy and the
civil penalties authorized or imposed in similar cases.
1 • The non-disclosure caused only minor economic harm to the Respondent
and provided no harm to the health and safety of others. Therefore, the
reprehensibility was low.
181 BMW of North America, Inc. v. Gore
1 • The amount of punitive damages awarded is 500 times the amount of
Respondent's actual damages. In TXO Production Corp. v. Alliance
Resources Corp., 509 U.S. 443, 113 S.Ct. 2711, the Supreme Court of the
United States (Supreme Court) determined that a punitive award 4 times
the actual damages was close to being excessive.
2 • The award is substantially greater than statutory fines available in
Alabama for a similar action.
Dissent. The United States Constitution (Constitution) does not guarantee that awards
will be fair and cases such as this should be decided and remain in the state courts. The
Supreme Court has become overly concerned with "punitive damages that have 'run
wild'."
Discussion. A state has the authority to protect its citizens from deceptive trade practices.
But one cannot force its rules on another state and thereby punish a company for
practices that are legal in another state.
1 • The Supreme Court develops a three-pronged test to measure excessive
punitive awards. Each component weighs the nature of the offense and
harm caused or potentially caused against the amount awarded. The
Supreme Court implied that if the conduct results in public harm, then the
outer limit of excessive is raised.
182 State Farm Mutual Automobile Insurance Co. v. Campbell
State Farm Mutual Automobile Insurance Co. v. Campbell
Citation. 123 S.Ct. 1513 (2003)
Brief Fact Summary. A car accident occurred resulting in the death of one individual,
and the incapacitation of another. The insurance company of the driver at fault, who was
not injured, acted inappropriately, and the driver sued the company and was awarded a
substantial amount of compensatory and punitive damages.
Synopsis of Rule of Law. When analyzing the validity of a punitive damage award, the
three guideposts from [BMW v. Gore] must be applied. Those include: "(1) the degree of
reprehensibility of the defendant's misconduct; (2) the disparity between the actual or
potential harm suffered by the plaintiff and the punitive damages award; and (3) the
difference between the punitive damages awarded by the jury and the civil penalties
authorized or imposed in comparable cases."
Facts. While driving with his wife, Curtis Campbell ("Mr. Campbell") (collectively
referred to as the "Campbells") attempted to pass six vans on a two-lane highway. By
doing so, however, Mr. Campbell was driving on the wrong side of the highway. An
accident ensued, and one individual was killed and another permanently disabled. Mr.
Campbell and his wife were unscathed. It was determined that Mr. Campbell's unsafe
pass caused the accident. Nonetheless, the Petitioner, Mr. Campbell's insurer, State Farm
Mutual Automobile Insurance Co. (the "Petitioner"), contested liability and declined
offers to settle with the estate of the deceased and with the permanently injured
individual. The Campbells' policy limit was $50,000. The Petitioner assured the
Campbells that "their assets were safe, that they had no liability for the accident, that
[State Farm] would represent their interests, and that they did not need to procure
separate counsel." The case eventually went to trial, and a jury found that Mr. Campbell
was 100% at fault and a judgment of $185,849 was entered against him. Initially, the
Petitioner refused to pay the excess $135,849 above the policy limits. Additionally, State
Farm would not post a bond to allow Mr. Campbell to appeal the verdict. The Campbells
retained their own counsel for the appeal. The estate of the deceased and the individual
that was incapacitated, agreed not to satisfy their claims against Mr. Campbell, it he were
to bring a "bad faith action against State Farm and to be represented by Slusher's and
Ospital's attorneys." Slusher and Ospital were the representatives of the deceased and the
incapacitated victims of the accident. In 1989, the Utah Supreme Court denied Mr.
Campbell and his wife's appeal, and State Farm satisfied the entire judgment. Despite the
outcome of the appeal, Mr. Campbell and his wife filed suit against the Petitioner,
alleging "bad faith, fraud, and intentional infliction of emotional distress." The jury
awarded the Campbell's $2.6 million in compensatory damages and $145 million in
punitive damages. The trial court reduced the compensatory award to $1 million and the
punitive award to $25 million. The Utah Supreme court reinstated the punitive award.
Issue. "[W]hether, [based on the circumstances], an award of $145 million in punitive
damages, where full compensatory damages are $1 million, is excessive and in violation
of the Due Process Clause of the Fourteenth Amendment to the Constitution of the
United States"?
Held. Yes, the reinstatement of the $145 million dollar punitive damage award was
excessive. The court first recognized there are procedural and substantive constitutional
limitations on compensatory and punitive damages awards. Specifically "[t]he Due
Process Clause of the Fourteenth Amendment prohibits the imposition of grossly
excessive or arbitrary punishments on a tortfeasor." Based on [BMW v. Gore], courts are
instructed to examine three "guideposts" when construing the validity of a punitive
damage award: "(1) the degree of reprehensibility of the defendant's misconduct; (2) the
disparity between the actual or potential harm suffered by the plaintiff and the punitive
damages award; and (3) the difference between the punitive damages awarded by the jury
and the civil penalties authorized or imposed in comparable cases." The court discussed
each in turn.
1 • The court first discussed the "reprehensibility of the defendant's
misconduct," which it says is the most important of the guideposts.
Reprehensibility is judged "by considering whether: the harm caused was
physical as opposed to economic; the tortious conduct evinced an indifference
to or a reckless disregard of the health or safety of others; the target of the
conduct had financial vulnerability; the conduct involved repeated actions or
was an isolated incident; and the harm was the result of intentional malice,
trickery, or deceit, or mere accident." The court then criticized the Utah
Supreme Court's condemning of the Petitioner "for its nationwide policies
rather than for the conduct directed toward the Campbells." Further, the
majority recognized the Utah Supreme court "awarded punitive damages to
punish and deter conduct that bore no relation to the Campbells' harm." The
court also found that the punitive damage award could not be upheld under the
guise that State Farm was a recidivist.
2 • The court then construed the second guidepost and refused to "impose a
bright-line ratio, which a punitive damages award cannot exceed." However,
the majority recognized "[o]ur jurisprudence and the principles it has now
established demonstrate, however, that, in practice, few awards exceeding a
single-digit ratio between punitive and compensatory damages, to a significant
degree, will satisfy due process." Moreover, "[i]n the context of this case, we
have no doubt that there is a presumption against an award that has a 145- to-1
ratio." The court recognized that the $1 million compensatory award was
complete compensation, especially since the damages in the case before
itwere entirely economic and not physical.
3 • The third and final guidepost concerned the "the disparity between the
punitive damages award and the 'civil penalties authorized or imposed in
comparable cases. ' " The court observed, "[t]he most relevant civil sanction
under Utah state law for the wrong done to the Campbells appears to be a
$10,000 fine for an act of fraud, [ ] an amount dwarfed by the $145 million
1 punitive damages award." The court refused to look at criminal penalties in
making their assessment.
Dissent. Justice Antonin Scalia ("J. Scalia") filed a dissenting opinion adhering to his
view expressed in his "dissenting opinion in [BMW of North America, Inc. v. Gore], that
the Due Process Clause provides no substantive protections against 'excessive' or
'unreasonable' awards of punitive damages."
1 • Justice Clarence Thomas ("J. Thomas") also filed a dissenting opinion
arguing "the Constitution does not constrain the size of punitive damage
awards."
2 • Justice Ruth Bader Ginsburg ("J. Ginsburg") entered a dissenting opinion
arguing that punitive damages awards are the prerogative of the states. J.
Ginsburg recognized that "[w]hen the Court first ventured to override state-
court punitive damages awards, it did so moderately." However, she argued
"[t]oday's decision exhibits no such respect and restraint. No longer content to
accord state-court judgments 'a strong presumption of validity,' [ ] the Court
announces that 'few awards exceeding a single-digit ratio between punitive
and compensatory damages, to a significant degree, will satisfy due process.' "
As such, "I would not join the Court's swift conversion of those guides into
instructions that begin to resemble marching orders."
Discussion. This case offers a good example of how the [BMW v. Gore] factors should
be applied.
185 Home Building & Loan Assn. v. Blaisdell
Home Building & Loan Assn. v. Blaisdell
Citation. 290 U.S. 398 (1934).
Brief Fact Summary. The Appellant, Home Building & Loan Assn. (Appellant),
contests a Minnesota law that prevents mortgage holders from foreclosing on mortgages
for a period of two-years.
Synopsis of Rule of Law. A state law may impair the contractual obligations of private
parties when there is a legitimate state interest and justification.
Facts. In response to the Depression, the Minnesota legislature passed the Minnesota
Mortgage Moratorium Law. This law allowed homeowners to seek relief from
foreclosure proceedings. Sales could be postponed and periods of redemption extended
except for those loans that were made after the passage of the law.
Issue. Does this provision violate the Contract Clause of the United States Constitution
(Constitution) by impairing the obligations between private parties in contracts?
Held. No. The state was justified under the circumstance of the Depression to extend
foreclosure timing to protect the economic interests of the state and its citizens. The
Depression was a proper emergency situation that warranted the action by Minnesota.
The legislation addressed a legitimate government purpose. The contracts affected by this
legislation are limited and it does not arbitrarily affect all mortgage contracts. The time
extensions are not unreasonable. The law is temporary in operation.
Discussion. The Supreme Court of the United States (Supreme Court) provides a
description of contractual impairment as that which releases a person from contractual
obligation. Generally, a state is not permitted to interfere with private contracts. But, if
the state can provide sufficient justification for the interference (such as safeguarding the
community for health or economic reasons), then the law will likely be constitutional.
186 Energy Reserves Group, Inc. v. Kansas Power & Light Co.
Energy Reserves Group, Inc. v. Kansas Power & Light Co.
Citation. 459 U.S. 400 (1983).
Brief Fact Summary. The state of Kansas regulated the price of natural gas sold in the
intrastate market. It prohibited natural gas producers from charging higher prices even if
the federal government set higher prices.
Synopsis of Rule of Law. A state law restricting ones profit expectations is not a
substantial impairment of a contractual obligation.
Facts. The Petitioner, Energy Reserves Group (Petitioner), had a contract with the
Respondent, Kansas Power & Light (Respondent) that allowed the price paid for the gas
to increase if federal regulators increased the price to an amount greater than the contract
amount.
1 • Kansas passed a law prohibiting private parties from increasing the
contracted gas prices even if the federal government increased the prices.
Issue. Is this provision a violation of the Contracts Clause of the United States
Constitution (Constitution)?
Held. No. Price regulation existed and was foreseeable at the time of contracting.
Therefore, the Kansas law did not impair Petitioner's contractual expectations. Also, the
state has a legitimate interest in correcting any discrepancy between the interstate and
intrastate markets.
Discussion. The Supreme Court of the United States (Supreme Court) articulates a three-
part test for determining when a state government interferes with private contracts: (1) is
there a substantial impairment of the contractual provisions; (2) does the impairment
serve a significant and legitimate interest and (3) is the law reasonably related to the
legitimate state purpose.
187 Allied Structural Steel Co. v. Spannus
Allied Structural Steel Co. v. Spannus
Citation. 438 U.S. 234 (1978).
Brief Fact Summary. The Appellant, Allied Structural Steel Co. (Appellant),
administered its own pension plan for its employees. In 1974, Minnesota passed the
Private Pension Benefits Protection Act (the Act) that would penalize large employers
who did not have enough funds to cover the pension of all employees who had worked
for a company for at least 10 years. That same year the Appellant closed its office in the
state and was fined accordingly.
Synopsis of Rule of Law. In order for the contract clause to remain viable, if must be
understood to impose certain limits upon the power of states to interfere with existing
contractual relationship, even though the state is exercising its otherwise legitimate police
power.
Facts. The Appellant funded a pension plan for all employees. At age 65 each employee
was entitled to receive a pension equal to 1% of their average monthly salary, multiplied
the number of years of service. The pension right became vested, in that employment
termination could not affect the right to receive the money. But, the company was free to
terminate the pension plan at any time for any reason.
1 • Minnesota passed a law requiring any employer with more than 100
employees who provided pension benefits, to pay a pension funding
charge if the funds were insufficient to cover all employees who had
worked for at least 10 years with the company.
2 • In the summer of 1974, the Appellant closed its Minnesota office. Nine
of the employees did not have vested rights under the company's plan, but
they had worked for the company for 10 years. So, the state charged
Appellant a fee of $185,000 under the Act.
Issue. Does Minnesota's Act violate the Contract Clause?

Held. Yes. The Act substantially altered the employer's obligation to the employees by
retroactively modifying the funding of the pension plan. This resulted in a severe,
permanent and immediate change in the contractual relationship. The Supreme Court of
the United States observed that the Act nullified express terms of the company's
contractual obligations and imposed a completely unexpected liability in potentially
disabling amount. Furthermore, the law was not designed to remedy a generalized
economic or social problem.
Dissent. Justice William Brennan (J. Brennan) argued that the Act was designed to
prevent corporations from obtaining a windfall by closing shops early and eliminating
pension contributions. Also, J. Brennan observed that the burden on companies is small.
188 Allied Structural Steel Co. v. Spannus
The companies expected to contribute to the funds and the Act just ensures that all
qualified employees actually have an interest available to them.
Discussion. The majority relies on the analysis of Home Building & Loan Assn. v.
Blaisdell, 290 U.S. 398 (1934), to support its conclusion here. The state must provide a
significant justification for interfering with the contracts of individuals. Here, there was
no emergency or crisis that warranted such an interference with the pension funds of
companies.
189 United States Trust Co. v. New Jersey
United States Trust Co. v. New Jersey
Citation. 431 U.S. 1 (1977).
Brief Fact Summary. The Respondent, the state of New Jersey (Respondent), originally
passed a law prohibiting the use of toll revenue to pay for railroad passenger service
upgrades and maintenance. However, during the energy crisis of the 1970's, it passed a
subsequent law allowing the tolls to pay for upgrades.
Synopsis of Rule of Law. Government interference with government contracts is subject
to greater scrutiny than when the interference concerns a contract between private parties.
A state cannot refuse to meet its contractual obligations to private creditors simply
because it would prefer to spend the money for the greater good of the community.
Facts. New York and New Jersey formed a Port Authority (Authority). Bonds were sold
to support the independent authority and bridge and tunnel tolls were pledged to protect
the bondholders. In 1960, the Authority took over a financially troubled, privately owned
commuter train. In 1962 New York and New Jersey entered a contractual arrangement
not to finance railroad deficits with revenue pledged to make bond payments. However,
in the 1970's, both New York and New Jersey passed laws, which repealed the original
legislation and allowed the toll revenue to be used to upgrade and maintain the railroad
system. The Petitioner argued that this changed the state's contractual obligation to repay
the bonds. The Petitioners, the United States Trust Company of New York and various
bondholders (Petitioners), brought suit alleging that the repeal of the original legislation
violated the Contract Clause in that it impaired their rights to payment on the bonds.
Issue. Does the repeal of the earlier legislation impair the obligation of New Jersey to the
bondholders?
Held. Yes. The Contract Clause does not prevent a state from enacting legislation, which
may affect existing contracts so long as reasonable conditions and public interests justify
its enactment. The situation is different when it comes to the state impairing its own
contracts. In that case, the nature of the contract must be scrutinized. Only where the
state's promise is not purely financial, may the state impair its own debts. Here, the
reservation of tolls was purely financial. States cannot impair their debts merely because
they would prefer to spend their money in a different manner. This repeal was not a
necessary or reasonable means of achieving the goal of encouraging citizens to use the
transit system instead of automobiles. A less drastic alternative was available to achieve
the state's goal.
Dissent. The Contract Clause should not be used to preserve a property right of third
parties who contract with the government, nor should it be used to overrule sound
legislative decision-making.
Discussion. States are free to change and repeal laws. However, special scrutiny exists
when the changes might affect the state's own contractual obligations. The majority
190 United States Trust Co. v. New Jersey
focuses on the self-interest the state may have when changing statutes that impact their
financial responsibilities to private parties.
191 Loretto v. Teleprompter Manhattan CATV Corp.
Loretto v. Teleprompter Manhattan CATV Corp.
Citation. 458 U.S. 419 (1982).
Brief Fact Summary. A New York law requires a landlord to permit a cable TV line be
run through the property. The New York Court of Appeals ruled that this does not
amount to a taking of the property.
Synopsis of Rule of Law. A permanent physical occupation of real property that is
authorized by the government is a taking within the constructs of the United States
Constitution (Constitution) regardless of the public interests that may be served.
Facts. Prior to 1973 the Respondent, Teleprompter Manhattan CATV (Respondent),
would obtain permission from property owners to run cable through their premises. In
exchange, for this permission the Respondent would pay the owners 5% of the gross
revenue recognized from the installation of cable in the apartment buildings.
1 • In 1973, the New York legislature passed an act stipulating that a
landlord "could not interfere with the installation of cable television
facilities upon his property."
2 • The Court of Appeals concluded that the act was a legitimate exercise of
the state's police powers.
Issue. Does a minor, but permanent physical occupation of property under the
authorization of the government constitute a "taking"?
Held. Yes. Respondent's installation of cable is a taking because the cable occupies space
within and upon the building.
Dissent. This decision relies upon the subjective analysis of whether property was
permanently occupied or temporarily invaded. Permanency results in a per se taking, but
temporary occupation is open to interpretation. This analysis is illogical.
Discussion. The majority is unconcerned with the reason for installing the cable. The fact
that the state wished to provide a public service is of no consequence. This is a taking
because the landlord had no choice but to surrender a portion of his building to the
Respondent.
192 Pennsylvania Coal Co. v. Mahon
Pennsylvania Coal Co. v. Mahon
Citation. 260 U.S. 393 (1922).
Brief Fact Summary. The Petitioner, Pennsylvania Coal (Petitioner), wants to mine
under the Respondent, Mahon's (Respondent), home for coal. But Respondent claims that
Petitioner lost this right when the state passed legislation that forbids mining when it
might cause the land to collapse.
Synopsis of Rule of Law. A taking can result from regulation of property that seriously
interferes with the use or enjoyment of the property by the owner.
Facts. Respondent bought the rights to the surface of the land in question from Petitioner
and subsequently built his home on it. Petitioner reserved the rights to remove any and all
coal located beneath Respondent's home. But, the state passed a legislative act in 1921
that prohibited the mining of land that might result in the sinking of the land where a
person's home was located.
Issue. Does this act result in a taking of the coal company's property rights?
Held. Yes. Whether a regulation goes too far and becomes a taking is a question of
degree. Here, it would be improper to provide a person who assumed the risk of acquiring
only surface rights with greater rights than they bought.
Dissent. The legislation is not a taking as it is designed to protect the public from harm.
Also, the government is not confiscating or making use of the land, so it is not a taking.
Discussion. The regulation is narrowly constructed to protect only those that acquired
surface rights. But, this is an interference with the bargain of the sales contract. The
Respondent took the chance there would be coal under his home and agreed to let the
Petitioner mine for it.
193 Miller v. Schoene
Miller v. Schoene
Citation. 276 U.S. 272 (1928).
Brief Fact Summary. The Respondent, Schoene (Respondent), acting under Virginia
state statute, cut down a number of red cedar trees in hopes of preventing the spread of
disease to nearby apple orchards. The owners of the trees were not compensated, but
allowed to keep the chopped wood for their use.
Synopsis of Rule of Law. Reduction in value of property does not equate to a taking.
Facts. The Cedar Rust Act of Virginia allowed for the removal of infected red cedar trees
from the property near orchards in an attempt to prevent the dissemination of plant
disease. The statute did not provide any compensation to the property owners, but they
were allowed to keep the wood to use as they chose.
Issue. Does this regulation result in a taking?
Held. No. When forced to choose, the state does not exceed its power by deciding upon
the destruction of one class of property in order to save another, which in its opinion, is
of greater value to the public.
Discussion. There are 3 factors to consider when determining if a taking exists: (1) the
economic impact of the regulation on the claimant; (2) the extent to which the regulation
interferes with expectations and (3) the character of the governmental action. Here, the
Supreme Court of the United States (Supreme Court) weighs each of these factors to
reach its conclusion. This construct helps explain the differing result found in
Pennsylvania Coal.
194 Penn Central Transportation Co. v. New York City
Penn Central Transportation Co. v. New York City
Citation. 438 U.S. 104 (1978).
Brief Fact Summary. The Respondent, New York City (Respondent), passed a
regulation that prevented the Petitioner, Penn Central Transportation (Petitioner), from
adding an office building structure to the top of Grand Central Station.
Synopsis of Rule of Law. If the restriction is reasonably related to a legitimate public
interest, then it does not result in a taking. Diminution in property value alone does not
establish a taking.
Facts. In 1968, the Petitioner entered into a 50-year lease agreement with a British
company to construct a multistory office building on the top of the existing terminal. The
plan was to increase revenue by renting the office space. But, the application to build was
denied.
Issue. May a city place restrictions on the development of individual historic landmarks
without effecting a taking requiring just compensation?
Held. Yes. The restrictions do not interfere with the present use of the Terminal. It still
allows Petitioner to profit from the Terminal and obtain a "reasonable return" from its
investment.
Dissent. This is a taking because the Respondent is asking companies like the Petitioner
to bear the cost of maintaining designated historical landmarks throughout the city. The
cost should be borne by the citizens of the city that insists these locations remain
unchanged.
Discussion. The Petitioner's argument that it is being denied the opportunity to further
develop the property for economic gain is not a sufficient intrusion upon the property.
The Respondent is not interfering with the current use or economic value of the property.
Furthermore, the Respondent has a legitimate interest in preserving the general welfare
by continuing the current use of the Terminal as-is.
195 Lucas v. South Carolina Coastal Council
Lucas v. South Carolina Coastal Council 505 U.S. 1003 (1992).

Brief Fact Summary. The Petitioner, Lucas (Petitioner), was not allowed to build homes
on the South Carolina beachfront property he owned. A state trial court found that the
land was valueless as a result of the regulation of the Respondent, the South Carolina
Coastal Council (Respondent).
Synopsis of Rule of Law. If a regulation prohibits all economically beneficial use of land
and the proscribed use could not have been prohibited under a given state's nuisance law,
the regulation is a "taking" which requires "just compensation" to be paid to the
landowner.
Facts. The Petitioner purchased two beachfront lots for $975,000 in 1986. He intended to
build single-family homes on each lot. But, in 1988 the South Carolina legislature passed
the Beachfront Management Act (the Act) that barred the building. The Act's stated
purpose was to protect property from storms, tides and beach erosion and as an
environmental protection. The Petitioner did not challenge the state's right to pass the Act
or its justifications for doing so. The Petitioner did claims that the passage of the Act
resulted in a taking of the property since he cannot use it for the intended purpose.
Issue. Does the no-build regulation result in a compensable taking?
Held. Yes. It is unreasonable for a state to prohibit the owner from using the land as he
originally intended, unless it can be shown that this use results in a nuisance or that
general property law prohibits such a use. The Supreme Court of the United State
(Supreme Court) observed that mandated preservation of private land looks like a
conversion of private property to public, a classic taking. Regulation of land use must
account for owners' traditional understanding as to the states power over their property
rights. By way of example the Supreme Court stated that the owner of a lake bed is
always aware that he may be stopped by law from flooding adjacent property to create a
landfill. However, here, since a state's common law principles would not prohibit the
Petitioner from building on the land, then a taking has occurred.
Dissent. Justice Harry Blackmun (J. Blackmun) argued that the majority has created a
new rule and exception that are not based on precedent and would apply in a very
situation that does not exist in this case.
Discussion. The majority describes two types of regulation that are considered takings:
(1) where the property owner suffers a physical invasion of his property and (2) where
the regulation denies all economically beneficial or productive use of the property. The
majority also focuses on the original intent and plans of the property owner to preserve
the common law property rights as a means of determining whether a taking exists.
196 Dolan v. City of Tigard
Dolan v. City of Tigard
Citation. 512 U.S. 374 (1994).
Brief Fact Summary. The Petitioner, Dolan (Petitioner), applied for a permit to expand
the size of her commercial building. The Respondent, City of Tigard (Respondent),
approved the permit on the condition that Petitioner dedicate 10% of the total land area to
the city for a bike path and drain.
Synopsis of Rule of Law. Generally, a required easement will result in a taking because
it is a permanent physical invasion of the private property. But, no taking will result if the
government can show that the requirement is roughly proportional to the impact of the
development on the community.
Facts. Respondent codified a development plan in its land use regulations. In particular,
the code requires that businesses located within the Central Business district devote 15%
of their land to open space and landscaping. Respondent later noted that automobile
traffic was increasing and decided to encourage alternative methods of transportation by
building a bicycle and walking path along the business corridor. This goal was achieved
by requiring new business development to donate land for the pathway. Respondent also
adopted a Master Drainage Plan for the flood plain located around the creek.
1 • Petitioner owns a plumbing and electric supply store in the Central
Business District and within the 100-year flood plain. She applied for a
permit to double the size of her establishment. Respondent approved the
permit, but conditioned it on the dedication of 7,000 square feet,
approximately 10%, of Petitioner's property for easements.
Issue. Does this specific required right-of-way easement amount to a taking?

1 • Does an "essential nexus" exist between the "legitimate state interest"
and the permit?
2 • If so, then what is the required degree of connection between the
easement and the projected impact of the proposed development?
Held. No.
1 • The prevention of flooding is a legitimate interest especially since
Petitioner plans to surface her parking lot and expand the amount of
impervious surface in the flood plain. The same is true for the pathway
because it serves a legitimate purpose of reducing traffic.
2 • The requirement must be "roughly proportional" to the impact of the new
development.
197 Dolan v. City of Tigard
Dissent. The burden of demonstrating that the property owner has been unreasonably
impaired should stay with the property owner. It is not the state's responsibility to go
beyond showing a rational, impartial reasoning for its land use specifications.
Discussion. The majority shuns the use of a strict "specific and uniquely attributable" test
because it is too rigorous given the nature of the interests. On the other hand, it finds the
"reasonable relationship" test is too easily confused with the low level of scrutiny
required for the "rational basis" test. So, the majority chooses a compromise that is more
closely akin to a rational relationship.
198 Palazzolo v. Rhode Island
Palazzolo v. Rhode Island
Brief Fact Summary. The Petitioner, Anthony Palazzolo (the "Petitioner"), sued the
Respondent, Rhode Island Coastal Resources Management Council (the "Respondent"),
alleging that the State of Rhode Island's wetland regulations as applied by the Respondent
to his parcel of land, violated the Fifth and Fourteenth Amendments of the United States
Constitution ("Constitution").
Synopsis of Rule of Law. If an owner of property "is not deprived of all economic use
of his property because the value of upland portions is substantial", a deprivation of all
value does not lie.
Facts. The Petitioner owns a piece of land on the waterfront in Westerly, Rhode Island.
Under Rhode Island law, almost all the of the Petitioner's property is designated coastal
wetlands. The Petitioner sought to develop the land, but his multiple attempts to do so
were rejected by the Respondent. Of the Petitioner's many proposals to develop the
property, one was to develop a private beach club. In order to do so, salt marshes on the
property would have to have been filled. A developer needed a "special exception" from
the Council to fill a salt marsh. A "special exception" was only granted if the proposed
activity serves "a compelling public purpose which provides benefits to the public as a
whole as opposed to individual or private interests." The special exception was refused,
and after the rejection, the Petitioner sued in state court asserting that the Respondent's
"application of its wetlands regulations took the property without compensation in
violation of the Takings Clause of the Fifth Amendment, binding upon the State through
the Due Process Clause of the Fourteenth Amendment."
Issue. Were the "[s]tate's wetlands regulations, as applied by the [Respondent] to [the
Petitioner's] parcel [a taking of] property without compensation in violation of the Fifth
and Fourteenth Amendments?"
Held. No. Justice Anthony Kennedy ("J. Kennedy") wrote the majority opinion and
recognized "[t]he owner is not deprived of all economic use of his property because the
value of upland portions is substantial" and as such the case must be remanded for
consideration under the [Penn Central] principles. J. Kennedy observed "we have given
some, but not too specific , guidance to courts confronted with deciding whether a
particular government action goes too far and effects a regulatory taking. First, we have
observed, with certain qualifications, that a regulation 'den[ying] all economically
beneficial or productive use of land' will require compensation under the Takings Clause.
Where a regulation places limitations on land that fall short of eliminating all
economically beneficial use, a taking nonetheless may have occurred, depending on a
complex of factors including the regulation's economic effect on the landowner, the
extent to which the regulation interferes with reasonable investment-backed expectations,
and the character of the government action." J. Kennedy also held (i) the claim was ripe
and (ii) the "claim is not barred by the mere fact that title was acquired after the
effective
199 Palazzolo v. Rhode Island
date of the state-imposed restriction." In other words, "[a] blanket rule that purchasers
with notice have no compensation right when a claim becomes ripe is too blunt an
instrument to accord with the duty to compensate for what is taken."
Concurrence. Justice Sandra Day O'Connor ("J. O'Connor") filed a concurring opinion.
J. O'Connor recognized that a more difficult question as presented by this case, "what
role the temporal relationship between regulatory enactment and title acquisition plays
in a proper [Penn Central] analysis." J. O'Connor argues that "[o]ur polestar instead
remains the principles set forth in [Penn Central] itself and our other cases that govern
partial regulatory takings. Under these cases, interference with investment-backed
expectations is one of a number of factors that a court must examine. Further, the
regulatory regime in place at the time the claimant acquires the property at issue helps to
shape the reasonableness of those expectations." J. O'Connor interprets the majority's
decision as not removing the "regulatory backdrop against which an owner takes title to
property from the purview of the [Penn Central] inquiry. It simply restores balance to
that inquiry. Courts properly consider the effect of existing regulations under the rubric of
investment-backed expectations in determining whether a compensable taking has
occurred. As before, the salience of these facts cannot be reduced to any 'set formula.' "
1 • Justice Antonin Scalia ("J. Scalia") also filed a concurring opinion
specifically disagreeing with the main principle underlying J. O'Connor's
opinion, "that it may be in some (unspecified) circumstance be '[un]fai[r],' and
produce unacceptable 'windfalls,' to allow a subsequent purchaser to nullify an
unconstitutional partial taking (though, inexplicably, not an unconstitutional
total taking) by the government." J. Scalia argued "the fact that a restriction
existed at the time the purchaser took title … should have no bearing upon the
determination of whether the restriction is so substantial as to constitute a
taking. The 'investment-backed expectations' that the law will take into
account do not include the assumed validity of a restriction that in fact
deprives property of so much of its value as to be unconstitutional."
2 • Justice John Paul Stevens ("J. Stevens") concurred in part and dissented in
part. J. Stevens didc not agree that "a succeeding owner may obtain
compensation for a taking of property from her predecessor in interest"
because a "taking is a discrete event" that "occurs at a particular time[.]" Thus,
the petitioner is not the appropriate party to bring this action and as such did
not have standing. Rather, the owner of the property at the time the regulation
was passed is the correct party.
Discussion. It is interesting to observe how the different justices apply [Penn Central] to
the facts of this takings case.
200 Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning
Agency
Citation. 535 U.S. 302 (2002)
Brief Fact Summary. The validity of a moratorium passed by a planning agency on
development around Lake Tahoe was at issue.
Synopsis of Rule of Law. Pursuant to [Penn Central], "the duration of the restriction is
one of the important factors that a court must consider in the appraisal of a regulatory
takings claim, but with respect to that factor as with respect to other factors, the
'temptation to adopt what amount to per se rules in either direction must be resisted.' "
Facts. This matter involved two ordinances passed by the Respondent, Tahoe Regional
Planning Agency (the "Respondent"), requiring the maintenance of the status quo while
studying the impact of development on lake Tahoe. The first ordinance was effective
from August 24, 1981, until August 26, 1983 and the second was effective from August
27, 1983 to April 25, 1984. The result of these two ordinances was to stop development
on virtually all property subject to the Respondent's jurisdiction for a period of 32
months. The purpose of the ordinance was to preserve the lake in its pristine state.
Development, over the years had dramatically affected the clarity of the lake. The
ordinances banned development on two main types of land, "high hazard" lands and
"Stream Environment Zones" ("SEZ"). The Petitioners, Tahoe Sierra Preservation
Council (the "Petitioners"), brought suit on behalf 2,000 owners of improved and
unimproved parcels of real estate. Those owners bought the land near the lake for the
purpose of building "at a time of their choosing" a single-family home "to serve as a
permanent, retirement or vacation residence". At the time of their purchases, the owners
"did so with the understanding that such construction was authorized provided that 'they
complied with all reasonable requirements for building.' "
Issue. "[W]hether a moratorium on development imposed during the process of devising
a comprehensive land-use plan constitutes a per se taking of property requiring
compensation under the Takings Clause of the United States Constitution"?
Held. Justice John Paul Stevens ("J. Stevens"), writing for the majority, first observed
that this dispute must be analyzed under the [Penn Central] framework despite the
Petitioner's argument that [Lucas v. South Carolina Coastal Council], a case applying a
categorical rule, is applicable. J. Stevens then distinguished between two types of takings
cases governed by the Fifth Amendment – physical takings and regulatory takings. As to
physical takings, the government has a "categorical duty to compensate the former
owner" regardless of whether the entire piece or only a portion of the piece of property is
taken. This is a hard and fast rule. On the other hand, however, those takings that do not
constitute a "categorical taking", regulatory takings, are entirely factual and require an
analysis of the "purposes and economic effects of the government actions." J. Stevens
observed, "[t]his longstanding distinction between acquisitions of property for public use,
on the one hand, and regulations prohibiting private uses, on the other, makes it
inappropriate to treat cases involving physical takings as controlling precedents for the
evaluation of a claim that there has been a 'regulatory taking,' and vice versa." The court
refused to treat the land use regulations before them "as per se takings [because this
treatment] would transform government regulation into a luxury few governments could
afford."
1 • The [Lucas] rule "states that compensation is required when a regulation
deprives an owner of 'all economically beneficial uses' of his land." "Under
that rule, a statute that 'wholly eliminated the value' of Lucas' fee simple title
clearly qualified as a taking. But our holding was limited to "the extraordinary
circumstance when no productive or economically beneficial use of land is
permitted." The court then emphasized the word "no" and recognized that the
court in a footnote said that "no" meant 100% not 95%. Anything less than
full elimination of value would result in application of [Penn Central]. J.
Stevens then concluded that the 32-month moratorium applicable in this
matter, does not satisfy the [Lucas] 100% requirement. He stated "[l]ogically,
a fee simple estate cannot be rendered valueless by a temporary prohibition on
economic use, because the property will recover value as soon as the
prohibition is lifted." As such, the [Penn Central] framework must be applied.
2 • The majority refuses to adopt the rule that "any deprivation of all economic
use, no matter how brief, constitutes a compensable taking." This rule would
encompass "numerous normal delays in obtaining building permits, changes
in zoning ordinances, variances, and the like". Additionally, "orders
temporarily prohibiting access to crime scenes, businesses that violate health
codes, fire-damaged buildings, or other areas that we cannot now foresee."
Further, "[a] rule that required compensation for every delay in the use of
property would render routine government processes prohibitively expensive
or encourage hasty decisionmaking." Instead, the majority observed "we have
eschewed 'any set formula' for determining when justice and fairness require
that economic injuries caused by public action be compensated by the
government, rather than remain disproportionately concentrated on a few
persons." "The outcome instead 'depends largely "upon the particular
circumstances [in that] case.' " "
3 • J. Stevens observed "the duration of the restriction is one of the important
factors that a court must consider in the appraisal of a regulatory takings
claim, but with respect to that factor as with respect to other factors, the
'temptation to adopt what amount to per se rules in either direction must be
resisted.' " Generally a moratoria of more than one year must be viewed with
skepticism. However, that must be balanced against the importance of
informed and deliberate decision making. Along those lines, the majority
recognized "[t]here may be moratoria that last longer than one year which
interfere with reasonable investment-backed expectations, but as the District
Court's opinion illustrates, petitioners' proposed rule is simply 'too blunt an
instrument' for identifying those cases."
Dissent. Judge William Rehnquist ("J. Rehnquist") filed a dissenting opinion joined by
Justice Antonin Scalia ("J. Scalia") and Justice Clarence Thomas ("J. Thomas"). The
dissenting justices found there was a taking because the Petitioners had not been able to
build on their land for about six years. Additionally, that such a delay "does not resemble
any traditional land-use planning device." They criticized the majority for not inquiring
into how far the regulation actually goes, and disagreed with the majority's 32 month
finding. J. Rehnquist also opposed the majority's refusal to apply [Lucas] where it was
admitted that for the three-year period the Petitioners' did not have any economically
viable use for their land. Instead, the majority said the taking was only temporary, and the
dissent was adamant this description is inappropriate. J. Rehnquist also criticized the
majority's argument that if the Petitioner's argument is accepted, "traditional, short-term,
land-use planning devices" would be considered takings. The dissenting justices argued
that this worry is misplaced because there are "other background principles of state
property law that prevent the delay from being deemed a taking."
Discussion. It is very interesting to read the majority and dissenting opinions along side
one another and recognize how differently they apply taking clause precedents.
203 Hawaii Housing Authority v. Midkiff
Hawaii Housing Authority v. Midkiff
Citation. 467 U.S. 229 (1984).
Brief Fact Summary. The Petitioner, Hawaii Housing Authority (Petitioner), forced
landowners such as the Respondent, Midkiff (Respondent), to sell parcels of their land to
those who were leasing the land. This was done in an effort to spread land ownership
more evenly amongst the islands' inhabitants.
Synopsis of Rule of Law. Ones property may not be taken for the benefit of another
private person without a justifying public purpose, even though compensation was paid.
Facts. The land ownership of the Hawaiian Islands is concentrated in a small group of
descendants of Polynesian chieftains. They subsequently lease their land to a multitude of
homeowners by parcel. In order to spread land ownership to more people, Petitioner
could condemn the property and sell the parcels to the lessees to "effectuate the public
purposes." Sale prices were set by either a condemnation trial or by negotiation between
the lessor and lessees. The price had to equal the fair market value of the owner's leased
fee interest and Petitioner could not sell more than one parcel to any one purchaser or
lessee.
Issue. Is the transferring of title from lessors to lessees in order to reduce the
concentration of ownership of fees simple a taking by the state of Hawaii?
Held. No. The Hawaii Legislature enacted its Land Reform Act not to benefit a particular
class of individuals, but to attack perceived evils of concentrated property ownership in
Hawaii. This is a legitimate public purpose.
Discussion. The social evil is the concentration of landownership in only a small group
of people. The result of this was a monopolized real estate market that improperly
inflated rates. So, the Supreme Court of the United States (Supreme Court) determined
that the exercise of eminent domain was an appropriate action by the state to rectify this
public harm.
204 Brown v. Legal Foundation of Washington
Brown v. Legal Foundation of Washington
Brief Fact Summary. A state law authorizing the creation of interest on lawyers' trust
accounts ("IOLTA"), and allowing that money to be used to pay for legal services for the
needy was challenged as an invalid taking.
Synopsis of Rule of Law. Since Washington's law "requires client funds that could not
otherwise generate net earnings for the client to be deposited in an IOLTA account" it
cannot be a "regulatory taking".
Facts. Most states, including the state of Washington, use IOLTA to pay for legal
services for the needy. The state of Washington's program was established by the
Washington Supreme court. In [Phillips v. Washington Legal Foundation], the Supreme
Court of the United States ("Supreme Court") found that the interest generated from
IOLTA accounts is the property of the owner of the principal. There are four essential
features of Washington state's IOLTA program: "(a) the requirement that all client funds
be deposited in interest-bearing trust accounts, (b) the requirement that funds that cannot
earn net interest for the client be deposited in an IOLTA account, (c) the requirement that
the lawyers direct the banks to pay the net interest on the IOLTA accounts to the Legal
Foundation of Washington (Foundation), and (d) the requirement that the Foundation
must use all funds received from IOLTA accounts for tax-exempt law- related charitable
and educational purposes."
Issue. Whether a states' taking of IOLTA interest constitutes an unlawful taking requiring
"just compensation" pursuant to the 5th Amendment?
Held. No. Justice John Paul Stevens ("J. Stevens") writing for the majority observes the
Fifth Amendment does not forbid the taking of property, only the taking of property
without "just compensation". The property owner's loss, not the governments gain is how
"just compensation" is measured.
1 • Based on the above, the court observes that if "petitioners' net loss was zero,
the compensation that is due is also zero." The court held "(1) that just
compensation is measured by the net value of the interest that was actually
earned by petitioners and (2) that, by operation of the Washington IOLTA
Rules, no net interest can be earned by the money that is placed in IOLTA
accounts in Washington." Since Washington's law "requires client funds that
could not otherwise generate net earnings for the client to be deposited in an
IOLTA account" it cannot be a "regulatory taking".
2 • On the other hand, "[a] law that requires that the interest on those funds be
transferred to a different owner for a legitimate public use, however, could be
a per se taking requiring the payment of 'just compensation' to the client.' "
205 Brown v. Legal Foundation of Washington
Dissent. Justice Antonin Scalia ("J. Scalia") filed a dissenting opinion joined by Justice
William Rehnquist ("J. Rehnquist"), Justice Anthony Kennedy ("J. Kennedy"), and
Justice Clarence Thomas ("J. Thomas"). J. Scalia observes "[t]he Court today concludes
that the State of Washington may seize private property, without paying compensation,
on the ground that the former owners suffered no 'net loss' because their confiscated
property was created by the beneficence of a state regulatory program. In so holding the
Court creates a novel exception to our oft-repeated rule that the just compensation owed
to former owners of confiscated property is the fair market value of the property taken."
Discussion. This case offers an interesting look at how the Fifth Amendment's takings
clause extends further than just to the taking of real property.
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207 Romer v. Evans
Romer v. Evans, 517 U.S. 620 (1996).

Brief Fact Summary. Several municipalities in Colorado had passed legislation that
banned discrimination against homosexuals in housing transactions. The Petitioner,
Romer (Petitioner), was not leased an apartment by the Respondent, Evans (Respondent)
because of his sexual orientation. Meanwhile, the state passed legislation that denied
homosexuals protected class status.
Synopsis of Rule of Law. If a law neither burdens a fundamental right nor targets a
suspect class, the legislation is constitutional as long as it bears a rational relation to some
legitimate state interest.
Facts. Colorado passed a constitutional amendment that repealed all prior provisions that
designated homosexuals as protected class for Equal Protection purposes.
1 • Petitioner was denied housing because of his sexual orientation and
brought a claim against Respondent under the municipal code. But, the
Respondent defended citing the newly enacted state law.
Issue. By singling out a group and denying them the protected class status has the
Colorado amendment violated the Equal Protection Clause of the United States
Held. Yes. A law declaring that it shall be more difficult for one group of citizens than all
others to seek aid from the government is a denial of equal protection in the most literal
sense. Amendment 2 classifies homosexuals to make them unequal to everyone else and
does not further a proper legislative end.
Dissent. The majority is bending the Constitution to fit the current fashion of including
homosexuals as part of the protected class. Judicial precedent indicates that the states
have always been free to enact laws barring certain groups from preferential treatment.
The group's recourse is to petition the lawmakers to amend or repeal prior acts.
Discussion. The majority indicates that this amendment results in discrimination against
a group because it singles them out and denies them protection of the law. The law is too
broad to be held useful to achieve any goal. This is the exact type of action that the Equal
Protection Clause of the United States Constitution (Constitution) is supposed to thwart.
208 United States Railroad Retirement Board v. Fritz
United States Railroad Retirement Board v. Fritz
Citation. 449 U.S. 166 (1980).
Brief Fact Summary. The retirement fund for railroad employees originally provided a
windfall for those who were eligible for social security and railroad benefits. But, in
1974, Congress determined that the system would be bankrupt by 1981 if it continued to
pay the windfall. Therefore, legislation was enacted to reduce the costs and make the
program financially viable.
Synopsis of Rule of Law. Congress needs just a rational basis for its social and economic
legislation.
Facts. The original railroad retirement fund allowed workers who had worked for the
railroad at some point in their careers to receive a pension, plus social security, plus a
pension available from another employer. This created a windfall payment to retired
railroad workers. In 1974, Congress became concerned that the system would be
bankrupt if payments continued in this manner. So, it enacted the Railroad Retirement
Act of 1974 that classified all railroad workers based on years of service and retirement
status. Some of these individuals were allowed to continue to receive windfall payments,
while others were limited to the lesser amount of the retirement fund or social security.
Issue. Was the classification of railroad workers by Congress arbitrary and irrational
resulting in a violation of the Equal Protection Clause of the United States Constitution
(Constitution)?
Held. No. Congress could properly determine that those who had acquired entitlement to
the retirement benefits while still employed in the railroad industry had a greater
equitable claim to those benefits than those who became eligible only once they qualified
for social security benefits. The "current connection" test is not arbitrary and has been
used before.
Dissent. Agrees that the proper test is the rational basis test, but insists that the actual
original reason for the classification must be presented. It is improper to simply accept
the reasons now provided by government attorneys.
Discussion. The majority shows that extreme deference is given to the legislature when
analyzing social or economic acts. Any classification is presumed valid as long as there is
some plausible reason for the act. The legislature never has to state the reasoning for a
law under the rational basis test.
209 Railway Express Agency, Inc v. New York
Railway Express Agency, Inc v. New York
Citation. 336 U.S. 106 (1949).
Brief Fact Summary. The Appellant, Railway Express Agency (Appellant), sells
advertising space on the side of its trucks. The Appellee, New York (Appellee), recently
passed a law forbidding advertising vehicles when the advertisements were not related to
the business of the vehicle.
Synopsis of Rule of Law. Even a law that appears to be too narrowly drawn will survive
rational basis review because complete deference is given to the state for its reasoning.
Facts. Appellant operates about 1,900 delivery trucks in New York City. To increase
revenue, Appellant sold the use of the sides of the truck as advertising billboards to its
clients. Appellee passed a law specifically prohibiting such advertising unless it was
connected to the business of the vehicle.
Issue. By classifying the types of advertisements on vehicles, has the Appellee violated
the Equal Protection Clause of the United States Constitution (Constitution)?
Held. No. This classification has a relation to the purpose for which it was made and does
not contain the kind of discrimination against which the Equal Protection Clause of the
Constitution protects.
Concurrence. The burden of showing unreasonableness should always be on the person
questioning the regulation.
Discussion. The majority describes this law as being narrowly construed to target a
particular group of advertisers. This classification is proper because the law is on an
evolutionary path and may be refined later to include a larger population of advertisers
and vehicle operators.
210 New York City Transit Authority v. Beazer
New York City Transit Authority v. Beazer
Citation. 440 U.S. 568 (1979).
Brief Fact Summary. The Petitioner, New York City Transit Authority (Petitioner),
refuses to employ methadone users. The Respondent, Beazer (Respondent), brings suit on
behalf of all methadone users who might work for Petitioner under the auspice that the
policy violates the Equal Protection Clause of the United States Constitution
(Constitution).
Synopsis of Rule of Law. A rule will violate the Equal Protection clause of the
Constitution if it circumscribes a class of persons according an unpopular trait or
affiliation.
Facts. Respondent applied for a job with Petitioner and was denied because he was being
treated for a drug addiction with methadone. This treatment is an effective cure for the
addiction, but still has a high failure rate, exceeding 25%.
Issue. Does Petitioner's hiring policy violate the Equal Protection Clause by refusing
employment to methadone users?
Held. No. The special classification created by Petitioner's rule serves the general
objective of safety and efficiency.
Dissent. It is improper to classify those who are on methadone treatment as a drug user.
This discriminates against them as potential employees, when they no longer have the
same traits as active users.
Discussion. The majority indicates that just because a rule may create sub-classifications
that are not as closely connected to achieving the legitimate interest, this does not
invalidate the entire rule. The Petitioner has a legitimate interest in the safety of the
services provided, even though the available positions may have had no safety
responsibility, the majority is reluctant to impose judicial judgment over that of the
business' management.
211 United States Department of Agriculture v. Moreno
United States Department of Agriculture v. Moreno
Citation. 413 U.S. 528 (1973).
Brief Fact Summary. The Appellee, Moreno (Appellee), was receiving food stamps
from the Appellant, the United States Department of Agriculture (Appellant). In 1971,
the Appellant changed the definition of household and Appellee lost all program
assistance.
Synopsis of Rule of Law. Discrimination against a politically unpopular group is not a
constitutionally permissible government interest. This will fail the rational basis test.
Facts. In 1964 the food stamp program was established. It provided assistance to all
households below a certain income level. A household originally was defined as "a group
of related or unrelated individuals, who are not residents of an institution or boarding
house." In 1971, the Appellant changed the definition of household to include only those
groups of related persons living together.
1 • The Appellee was a 56-year old diabetic who lived with a single mother
of 3 small children. Prior to the change, she and the mother received food
stamp assistance. But, now her food stamps have been discontinued and
the family will loose its ration if it continues to allow the Appellee to live
with them.
Issue. Does this classification of "household" violate the Equal Protection Clause of the
United States Constitution (Constitution)?
Held. Yes. This classification simply does not operate as to rationally prevent the
prevention of fraud. The Food Stamp Act has complete sections devoted to such purpose.
Dissent. This change is rationally related to the prevention of fraud caused by unrelated
groups pooling their resources. The fact that there might be unintended consequences
does not make the change unconstitutional.
Discussion. The majority recognizes that the intent of this amendment was to
discriminate against hippie communes. The Congress may not pass bills designed to
purposely harm a politically unpopular group regardless of the reason. This is an
exception to the rational basis low level of scrutiny seen in previous cases.
212 City of Cleburne, Texas v. Cleburne Living Center, Inc.
City of Cleburne, Texas v. Cleburne Living Center, Inc.
Citation. 473 U.S. 432 (1985).
Brief Fact Summary. The Petitioner, City of Cleburne (Petitioner), denied a special use
permit to the Respondent, Cleburne Living Center (Respondent), for the establishment of
a group home for the mentally retarded in the community. The Court of Appeals of the
Fifth Circuit determined that this group is a "quasi-suspect" class and that the ordinance
violated the Equal Protection Clause of the United States Constitution (Constitution).
Synopsis of Rule of Law. Legislation that distinguishes between the mentally retarded
and others must be rationally related to a legitimate governmental purpose.
Facts. The Respondent bought a property from a private owner with the intention of
starting a group home for the mentally retarded. It was expected that 13 persons would
reside in the house of 4 bedrooms and 2 baths. Petitioner required Respondent to apply
for a special use permit and then denied the application.
Issue. Is the mentally retarded part of a "quasi-suspect" class subject to a higher scrutiny
under the Equal Protection Clause?
1 • Is the special use permit requirement constitutional?
Held. No. This is a group that has political clout and has not suffered from prejudice in
the past.
1 • No. There is no rational basis for requiring this particular group home to
have a permit when other similar arrangements are not required to do so. It
is clear that the only reason this permit was required was because the
mentally retarded were involved.
Discussion. The mentally retarded do not qualify as a suspect or quasi-suspect class

because the lack of history of discrimination and they are not politically powerless. As a
group they have been able to attract the attention of lawmakers on several issues.
213 Dred Scott v. Sandford
Dred Scott v. Sandford
Citation. 60 U.S. 393 (1856).
Brief Fact Summary. The Petitioner, Dred Scott (Petitioner), was a slave who was taken
to Illinois before the Civil War. He attempted to bring suit in a court of law to establish
that he was a citizen of the state of Illinois and a free man.
Synopsis of Rule of Law. The Missouri Compromise is unconstitutional and slaves are
property not citizens.
Facts. Petitioner was a slave in Missouri and later taken to Illinois. When his owner died,
he attempted to sue the executor of the estate, the Respondent Sandford (Respondent), in
federal court on the basis of diversity of citizenship.
Issue. Is Petitioner a citizen of the United States and entitled to use of the federal court
system?
Held. No. The original framers of the United States Constitution (Constitution) were
clear in their words and actions. "All men" included the dominant race and not the
Africans who were imported as slaves. They are still property as they were originally.
Discussion. The Supreme Court of the United States (Supreme Court) simply did not
recognize slaves as people and did not agree that indentured servitude needed to be
eliminated.
214 Korematsu v. United States
Korematsu v. United States
Citation. 323 U.S. 214 (1944).
Brief Fact Summary. The Petitioner, Korematsu (Petitioner), a Japanese-American, was
forced to leave his home that was located in a military area in California. The
Respondent, the United States (Respondent), claimed that the expulsion was necessary in
the time of war.
Synopsis of Rule of Law. Legal restrictions that interfere with the civil rights of a single
racial group are subject to strict scrutiny. But, pressing public necessity may sometimes
justify the existence of such restrictions.
Facts. On May 9, 1942, the Commanding General of the Western Command of the
United States Army decided that all persons of Japanese ancestry should be excluded
from the military area of San Leandro, California. The General felt that curfews imposed
at the time were not sufficient to protect the area from the dangers of espionage and
sabotage. The Petitioner refused to leave his home and was convicted in federal court for
staying at his home. The Petitioner claims that this rule was racially discriminatory.
Issue. Was it beyond the war power of Congress and the Executive to exclude those of
Japanese ancestry from the West Coast war area at the time they did?
Held. No. When under conditions of war on homeland soil, the power to protect the
United States must be commensurate with the threatened danger.
1 • Petitioner was not excluded from the area because of hostility to him or
his race. There was evidence of disloyalty in the group, but the specific
persons could not be readily identified in an expedited manner. So, all of
the group were excluded from the area.
Dissent. Justice Frank Murphy (J. Murphy) stated that the regulation is an example of
racism. The military should have discretion to make decisions, but when martial law has
not been declared within an area, there are limits to the military's power. The appropriate
test for this situation is "the public danger should have been so immediate, imminent and
impending" that a delay would have been devastating.
1 • Justice Robert Jackson (J. Jackson) said that the Petitioner was convicted
of a crime that would not have been a crime had he been of a different
race.
Discussion. The majority creates an exclusion for this case. Normally, a law forcing all
people of a particular race to leave an area would violate the United States Constitution
(Constitution). But, because of the intense concern for national security at the time, these
folks were asked to leave. First, the government tried imposing a curfew, but it appears
that this was ignored and that persons may have sabotaged the military integrity of the
West Coast.
215 Loving v. Virginia
Loving v. Virginia 388 U.S. 1 (1967).
Brief Fact Summary. The Petitioners, Mr. and Mrs. Loving (Petitioner), are a married
interracial couple. They returned to Virginia after marrying in Washington, D.C. and
were convicted of violating a state statute prohibiting mixed marriages.
Synopsis of Rule of Law. Racial classification is treated the same as racial
discrimination. It must the strict scrutiny test or in other words be necessary to further a
compelling state interest.
Facts. Mildred Jeter, a black woman and Richard Loving, a white male, were both
residents of Virginia. They were married in Washington, D.C. in 1958 and returned to
their home in Virginia. In the fall of that year, they were indicted for violating the state
law against interracial marriages and later sentenced to one year in jail. But the trial judge
suspended the sentence for 25 years, if they would leave the state and never return as a
couple.
Issue. Does the statute adopted by Respondent, the state of Virginia (Respondent), to
prevent interracial marriages violate the Equal Protection Clause of the United States
Held. Yes. Restricting the freedom to marry based solely on racial classifications violates
the Equal Protection Clause of the Constitution. The justification provided by the state is
an obvious endorsement of the doctrine of White Supremacy and is impermissible.
Discussion. The Supreme Court of the United States (Supreme Court) decidedly rejects
the notion that because this law was equally applied to the white husband as the black
wife it is not discriminatory. The purpose of the law is clearly stated as to preserve the
integrity of the white race especially since it does not prohibit interracial marriages
between any of the other races.
216 Palmore v. Sidoti
Palmore v. Sidoti
Citation. 466 U.S. 429 (1984)
Brief Fact Summary. A state court granted custody of a child to one Caucasian parent
over another Caucasian parent, partially because one parent had a relationship with, and
eventually married a black man.
Synopsis of Rule of Law. "The effects of racial prejudice, however real, cannot justify a
racial classification removing an infant child from the custody of its natural mother found
to be an appropriate person to have such custody."
Facts. The Petitioner, Linda Sidoti Palmore (the "Petitioner"), and the Respondent,
Anthony J. Sidoti (the "Respondent"), were both Caucasians. The Petitioner and the
Respondent were divorced in May 1980, in Florida. The Petitioner was awarded custody
of the three-year-old child. In September 1981, the Respondent sought custody of the
child citing changed conditions, the conditions being that the Petitioner was cohabitating
with a Negro, Clarence Palmore, Jr. ("Mr. Palmore"), who she eventually married. The
Respondent also made various allegations about how the Petitioner did not care for the
child. The court hearing the custody matter found "[t]he father's evident resentment of the
mother's choice of a black partner is not sufficient to wrest custody from the mother. It is
of some significance, however, that the mother did see fit to bring a man into her home
and carry on a sexual relationship with him without being married to him. Such action
tended to place gratification of her own desires ahead of her concern for the child's future
welfare. This Court feels that despite the strides that have been made in bettering
relations between the races in this country, it is inevitable that Melanie will, if allowed to
remain in her present situation and attains school age and thus more vulnerable to peer
pressures, suffer from the social stigmatization that is sure to come."
Issue. Is a state court's ruling divesting the Petitioner of her child because she married
someone of another race in violation of the United States constitution?
Held. Yes. The Supreme Court of the United States ("Supreme Court") first recognized
that a custody issue generally would not be of interest to the court. However, the court
recognized important federal concerns in this case based on "the Constitution's
commitment to eradicating discrimination based on race." The court admitted "[t]here is a
risk that a child living with a stepparent of a different race may be subject to a variety of
pressures and stresses not present if the child were living with parents of the same racial
or ethnic origin." However, "[t]he Constitution cannot control such prejudices but neither
can it tolerate them. Private biases may be outside the reach of the law, but the law
cannot, directly or indirectly, give them effect. 'Public officials sworn to uphold the
Constitution may not avoid a constitutional duty by bowing to the hypothetical effects of
private racial prejudice that they assume to be both widely and deeply held.' "
Discussion. Although racial prejudice is a reality, and its effects are far reaching, courts
cannot consider the effects of a biracial upbringing when making a custody assessment.
217 Plessy v. Ferguson
Plessy v. Ferguson
Citation. 163 U.S. 537 (1896).
Brief Fact Summary. The Petitioner, Plessy (Petitioner), was denied a seat in the all
white railway car because one of his great-grandparents was black.
Synopsis of Rule of Law. Segregation of the races is not unconstitutional.
Facts. Petitioner was 7/8 white and 1/8 black. He was denied a seat on a train because of
this mixture.
1 • The state of Louisiana passed legislation that provided "separate but
equal" railroad cars for blacks and whites. There was to be no
commingling of the races in the same car unless a partition was provided.
Issue. Is the Louisiana statute providing for separate railroad cars constitutional?
Held. Yes. Legislation is powerless to erase racial distinctions. The 14th Amendment of
the United States Constitution (Constitution) was introduced to ensure that whites and
blacks receive equal treatment. If the civil and political rights of both races are equal, one
cannot be inferior to the other. If one race is socially inferior, the Constitution cannot
rectify this.
Dissent. This legislation is inconsistent with equality of rights. It is clear that the motive
of this statute is to keep blacks out of the coaches occupied by the whites. By requiring
the races to stay separate, the legislation is depriving citizens of their right to choose.
Discussion. The majority rests on the idea that social inequity can never be resolved until
individuals treat each other differently. But, this treatment was not something that the
government could force on people. Therefore, as long as there was "separate but equal"
accommodations, there was no violation of Equal Protection.
218 Brown v. Board of Education
Brown v. Board of Education
Citation. 347 U.S. 483 (1954).
Brief Fact Summary. The Petitioner, Brown (Petitioner), was a class action
representative of black, school aged children from 4 different states who wanted to attend
public school with white students. At the time all public schools in those states were
segregated and thought to be "separate but equal."
Synopsis of Rule of Law. Public education must be available to all races equally.
Facts. In Kansas, South Carolina, Delaware and Virginia the public schools were
segregated by race. Petitioner and the rest of the class sought to enter the schools attended
by whites because they contend that the black schools are not equal and cannot be made
equal.
Issue. Does segregation of children in public schools solely based on race deprive the
children of a minority group equal educational opportunity?
Held. Yes. Although the tangibles of the schools may be equal, separation of the races
generates a feeling of inferiority and effects educational opportunities. The doctrine of
"separate but equal" has no place in public education. Separation is inherently unequal.
Discussion. The Supreme Court of the United States (Supreme Court) rejects the holding
of Plessy. It discusses the profound effect separation has on the hearts and minds of
young children as they try to understand and learn about society and their place in it.
Education is considered necessary to succeed in life and be a good citiz en. Therefore, it
is in the nation's best interest to desegregate the races and educate equally.
219 Washington v. Davis
Washington v. Davis 426 U.S. 229 (1976).

Brief Fact Summary. The Petitioner, Washington (Petitioner), a black man failed the
written test to become a Washington, D.C. police recruit. He claims that the test was
racially biased and cited the relatively low number of black cops on the force as evidence.
Synopsis of Rule of Law. A rule that is neutral on its face and rationally related to a
legitimate state interest is constitutional even though it may impact a race
disproportionately.
Facts. Washington, D.C. required each police officer applicant to submit to a round of
testing including physical tests and a written personnel test, Test 21. In order to enter the
17-week training course an applicant had to achieve 40 out of 80 on Test 21.
1 • Petitioner took Test 21 in 1970 and failed it. He claims that this test is
racially biased because the majority of black applicants who took it failed.
Issue. Does an employment test that results in a higher failure rate amongst black
candidates deprive them of their Equal Protection rights?
Held. No. The test is administered generally to all applicants and is used to determine the
level of verbal skills the candidate has. Disproportionate impact is not the sole indicator
of invidious racial discrimination.
Dissent. Every other court presented with this same issue has found in the opposite. The
test needs to be proven that it is an indicator of future job performance.
Discussion. The majority focuses on the use of the test as a means of qualifying
candidates for the job. The validity of the test was never determined or discussed as a
possibility of a design flaw. Instead, it is treated as requirement that measures initial
competence.
220 McCleskey v. Kemp
McCleskey v. Kemp 481 U.S. 279 (1987).

Brief Fact Summary. The Petitioner, McCleskey (Petitioner), was a black man
convicted of murdering a white police officer. The jury sentenced Petitioner to death.
Now he claims that sentencing was administered in a discriminatory manner.
Synopsis of Rule of Law. A criminal defendant has the burden of proving the existence
of purposeful discrimination and that this discrimination had a discriminatory effect on
him.
Facts. Petitioner was involved in an armed robbery of a store where an off-duty police
officer was shot in the face and killed. The jury found Petitioner guilty beyond a
reasonable doubt and that there were aggravating circumstances warranting the death
penalty.
1 • Petitioner offered the Baldus study as evidence that sentencing was more
often based on the race of the defendant and to a lesser degree upon the
race of the victim.
Issue. Does the introduction of a statistical study indicating that race enters into capital
sentencing decisions prove that Petitioner's sentence is unconstitutional?
Held. No. A criminal defendant has the burden of proving the existence of purposeful
discrimination and that this had a discriminatory effect on him. The Baldus study
describes sentencing in general and does not prove that discrimination occurred in this
particular case.
Dissent. The Baldus study proves that sentencing is biased according to race and it could
have been used to predict the outcome in this case. Because of this bias, the application of
sentencing guidelines is unconstitutional.
Discussion. The majority accepts the results of the study as being representative of
sentencing in general. It provides a retrospective review of the outcome of a group of
cases, but it does not serve as a predictor of sentencing in a particular case.
221 City of Mobile v. Bolden
City of Mobile v. Bolden
Citation. 446 U.S. 55 (1980).
Brief Fact Summary. The Petitioner, the City of Mobile (Petitioner), has a 3-person
council. The councilmen run in an open election, where the majority vote getters are
awarded seats on the council. Although the Petitioner City has a large black population, it
has never had a black councilman.
Synopsis of Rule of Law. Legislative apportionment could violate Equal Protection, if
the purpose was to minimize or cancel out the voting potential of minorities.
Facts. The Petitioner City has a 3-person council. Each councilman runs for an open seat
on the council and is elected by a majority vote. He will then serve a term of four years.
State law governs this design of government. The Respondent, Bolden (Respondent),
alleges that his voting rights have been adversely affected by this method of election, as
evidenced by the lack of any black persons in the city council. The district court found
invidious discrimination and the court of appeals affirmed.
Issue. Does the at-large system of municipal voting violate the rights of the black voters
of the Petitioner City?
Held. No. Reverse Court of Appeals.
1 • There is no indication that this type of government was developed to
purposely prevent a black person from being mayor. State action that is
racially neutral on its fact violates the Fifteenth Amendment only if it is
motivated by a discriminatory purpose. Multi-member legislative districts
will only be found unconstitutional when their purpose is to minimize the
voting power of racial minorities. It is not enough only to show that
minority council members were not elected in proportion to their
percentage of the total population.
Dissent. Justice Byron White (J. White) argued that there is no basis for the majority
opinion that the Respondent needs to show a discriminatory intent.
Discussion. To prove discrimination, the minority group needs to show more than a
disproportionate number of representatives in the government. Past discrimination is also
not enough to make a government configuration unlawful.
222 Palmer v. Thompson
Palmer v. Thompson
Citation. 403 U.S. 217 (1971).
Brief Fact Summary. Jackson, Mississippi operated public swimming pools, but kept
them segregated until it eventually closed or sold them all.
Synopsis of Rule of Law. An official governmental action that denies access to public
facilities to all citizens does not violate the Equal Protections Clause of the United States
Facts. The city maintained segregated swimming pools while it desegregated the zoo,
public golf courses and parks. The city decided to close all pools instead of desegregating
them. Some of the black citizens then filed suit to force the city to reopen the pools as
desegregated facilities.
Issue. Is this closing of swimming pools state action that denies Equal Protection to the
black citizens in the community?
Held. No. A city may choose to close pools for any reason. The Supreme Court of the
United States (Constitution) has never held an act unconstitutional solely because of the
motivations of the men who voted for it.
Dissent. A state may not avoid integration by eliminating all of its public services such as
school, parks or pools. It may not close facilities for the purpose of "perpetuating or
installing apartheid."
Discussion. The decision to close the pools affected all citizens equally and though it
may have been racially motivated, no one group was more disadvantaged than another as
a result.
223 Personnel Administrator of Massachusetts v. Feeney
Personnel Administrator of Massachusetts v. Feeney
Citation. 442 U.S. 256 (1979).
Brief Fact Summary. The Respondent, Feeney (Respondent), challenges the Petitioner,
Personnel Administration of Massachusetts's (Petitioner), rule that provides a hiring
preference to military veterans.
Synopsis of Rule of Law. A gender neutral statute that adversely impacts one gender
does not violate the Equal Protection Clause of the United States Constitution
(Constitution) if it does not have a discriminatory purpose and it does not actually
classify one gender.
Facts. Respondent claims that by having a hiring preference for veterans over non-
veterans for civil service positions, the Petitioner is discriminating against women.
1 • The District Court found that this practice has a severe impact on job
opportunities for women, since most of the veterans are men.
Issue. Does the hiring practice that favors veterans violate the Equal Protection Clause of
the United States Constitution?
Held. No. The benefit of this act was offered to any person who was a veteran. The law is
a preference for veterans of either sex over non-veterans of either sex. It was not designed
to favor men over women.
Discussion. This statute was designed to reward and help veterans reenter society after
their service. At the time only 1% of the veterans were women. So, it appeared that this
legislation was meant for men only. But, in its application and by definition a veteran is
gender neutral.
224 Village of Arlington Heights v. Metropolitan Housing Development Corp.
Village of Arlington Heights v. Metropolitan Housing Development
Corp.
Citation. 429 U.S. 252 (1977).
Brief Fact Summary. The Respondent, Metropolitan Housing Development Corp.
(Respondent), applied to the Petitioner, Village of Arlington Heights (Petitioner), for
rezoning of a parcel from single family to multi-family, low-income housing. The
rezoning was denied and Respondent sued citing racial discrimination.
Synopsis of Rule of Law. Discriminatory effect alone does not render a governmental
decision unconstitutional. There must be a motivating discriminatory purpose.
Facts. Respondent wanted to build 190 townhouses on the parcel of land for low and
moderate-income tenants. Petitioner denied the request. Respondent brought suit because
the decision by Petitioner disproportionately affects racial minorities.
Issue. Does this denial to rezone violate the Equal Protection Clause of the United States
Held. No. There is little in the sequence of events of the denial to rezone that leads one to
conclude that the decision was racially motivated.
Discussion. There was simply no evidence of discriminatory intent or purpose behind
this decision to deny the rezoning. The entire area had been zoned for single-family
homes since the late 1950's. In fact, single-family homes surround the site in question.
225 Brown v. Board of Education
Brown v. Board of Education 349 U.S. 294 (1955).

Brief Fact Summary. After ruling school segregation unconstitutional in Brown v.
Board of Education, 347 U.S. 483 (1954) (Brown I), local school boards sought judicial
guidance as to the appropriate remedy for the segregation.
Synopsis of Rule of Law. Federal courts may sit in equity to enforce judgments of the
Supreme Court of the United States (Supreme Court).
Facts. After Brown I, some of the defendant school districts met the ruling with great
resistance. While some school districts readily adopted plans to desegregate their school
systems, others sought guidance from the Supreme Court on the appropriate remedy for
school segregation.
Issue. What is the appropriate judicial remedy for the damages caused by school
segregation?
Held. Cases remanded to federal district courts for equitable resolution.
1 • Chief Justice Earl Warren (J. Warren) stated that local school districts
were to come into compliance with Brown I at the earliest possible date. J.
Warren also notes that the steps toward compliance would vary depending
on the circumstances present in various local school systems.
2 • Because of the variety of local problems, the Supreme Court remanded
the individual cases to the district courts in which the suits were filed,
asking that the district courts apply principles of equity to guide individual
districts into compliance with the tenets of Brown I. Equitable remedies
were appropriate because of the traditional flexibility of such remedies and
because of the ability of equity to reconcile the personal stakes of the
plaintiffs with the public interest in the elimination of obstacles to the
implementation of Brown I.
Discussion. Apart from the delay gained by asking for clarification of the principles of
Brown I, the respondents in Brown II were asking for clear goals and guidelines for
reaching compliance with Brown I. The Supreme Court disappointed them by not only
not providing concrete guidelines, but also requiring the district courts to sit in equity
over their compliance process - that is, asking that the judicial review of the school
districts' policies maximize its flexibility.
226 Swann v. Charlotte-Mecklenburg Board of Education
Swann v. Charlotte-Mecklenburg Board of Education
Citation. 402 U.S. 1 (1971).
Brief Fact Summary. School districts undergoing desegregation under Brown v. Board
of Education, 347 U.S. 483 (1954) (Brown I), and Brown v. Board of Education, 349
U.S. 294 (1955) (Brown II), sought clarification of their duties and the scope of federal
district courts' power under [Brown I/II].
Synopsis of Rule of Law. The scope of District Court authority is broad, but enters only
when local school districts have not voluntarily brought themselves into compliance with
Brown I/II.
Facts. In the wake of Brown II, many school districts still sought to maintain vestiges of
their pre-Brown I segregated systems. Defendant school districts brought suit, alleging
that District Courts had overreached their authority, broad as it may be, under Brown II.
Issue.
1 • What is the scope of District Court authority under Brown II?
2 • When is it appropriate for the court to invoke that authority?
Held. The authority is broad, but is appropriate only where local districts have failed to
bring themselves into compliance with Brown I on their own accord.
1 • Remedial authority does not put judges "automatically in the shoes of
school authorities."
2 • Mathematical racial quotas are an allowable exercise of judicial
authority, when used as a starting point after a "total default" of the school
board's duty.
3 • Single-race schools are not per se a "mark of a system that still practices
segregation by law." The court "should scrutinize such schools," and the
burden is on the school district to demonstrate that the school's racial
makeup is not the result of past or present de jure segregation.
4 • The courts may redefine district lines to desegregate the systems, even
though such redistricting may cause initial inconvenience and burdens.
5 • Busing is an appropriate remedy, as well, as long as the time involved in
the busing does not risk the health of the children or significantly impinge
on the educational process.
Discussion. The Supreme Court of the United States (Supreme Court) made clear that the
federal courts have almost carte blanche in desegregating previously segregated
227 Swann v. Charlotte-Mecklenburg Board of Education
school systems. However, their authority only exists when the local school boards
"default" in their efforts to desegregate.
228 Milliken v. Bradley
Milliken v. Bradley
Citation. 418 U.S. 717 (1974).
Brief Fact Summary. The schools of the city of Detroit, Michigan were racially
imbalanced in the eyes of the District Court. The court's remedy was to redraw lines of
neighboring suburban school districts to achieve racial balance within the city's schools.
Synopsis of Rule of Law. The District Courts cannot redraw the lines of integrated
school systems to achieve racial balance in a segregated school system absent an
interdistrict violation or effect.
Facts. Attempts to integrate the Detroit schools had been unsuccessful. The District
Court redefined the area in question from the city itself to the outlying school districts in
the metropolitan area, a total of 54 school districts, including the Detroit district itself.
The proposed redistricting would cause significant administrative and financial problems
for the resulting school system.
Issue. May District Courts redraw the boundaries of integrated school districts to achieve
integration in a segregated district?
Held. Not without an interdistrict violation or effect.
1 • Chief Justice Warren Burger (J. Burger), writing for the majority, notes
that there are many practical difficulties in the proposed plan. It is unclear
what the status of currently elected school officials would be in the new
"super district;" how taxes would be levied and distributed and who
should make curriculum decisions.
2 • The scope of the remedy is determined by the nature and scope of the
constitutional violation. In the present case, the discriminatory acts of a
single district must be a substantial cause of interdistrict segregation.
Thus, if district lines were drawn on the basis of race, or if discriminatory
acts of one district caused segregation in another, an interdistrict remedy
may be in order. However, this is not the case here.
Dissent. Justice Byron White (J. White) argues that the Supreme Court of the United
States (Supreme Court) is asking District Courts to consider administrative convenience
over violations of constitutional rights. The "core of [his] disagreement is that deliberate
acts of segregation and their consequences will go unremedied." J. White argues that the
remedy espoused by the District Court is not impossible, merely inconvenient and
convenience is not as important as preserving individuals' rights to an integrated
education.
Discussion. Milliken is the first case since Brown v. Board of Education, 347 U.S. 483
(1954) (Brown I), which reigned in the power of federal courts to remedy segregation in
public schools. Until Milliken, the courts had been given broad powers in equity to
229 Milliken v. Bradley
enforce the holdings of Brown I by a variety of methods, including redistricting,
establishing racial quotas and busing. Milliken drew the line at redistricting integrated
districts, unless there was an interdistrict effect with a segregated district.
230 Board of Education of Oklahoma City Public Schools v. Dowell
Board of Education of Oklahoma City Public Schools v. Dowell
Citation. 498 U.S. 237 (1991).
Brief Fact Summary. The Petitioner, Board of Education of Oklahoma City (Petitioner),
sought dissolution of the District Court-imposed school desegregation plan.
Synopsis of Rule of Law. District Court authority over school districts extends only until
the districts in question have complied with the injunctions long enough to reasonably
redress past segregation.
Facts. In 1972, the District Court imposed a desegregation plan for the Oklahoma City
Public School System. In 1985, the Board of Education adopted a new plan ("SRP") for
assigning students to schools. The SRP was not discriminatory on the basis of race. The
Petitioner was sued by the Respondents, Dowell, et al. (Respondents), alleging that the
District Court injunction was still in effect. The District Court ruled that the
desegregation decree was dissolved. After a reversal by the Court of Appeals, the
Supreme Court of the United States (Supreme Court) granted certiorari.
Issue. Should the desegregation decree be dissolved as of the time the SRP was enacted?
Held. Case reversed and remanded for further review.
1 • Chief Justice William Rehnquist (J. Rehnquist) notes that the lower
courts have been inconsistent with their definition of a "unitary" school
system. Some courts defined unitary as meaning a district had removed all
vestiges of segregation. Other courts defined unitary as meaning that a
district has currently desegregated its assignment policies. It is clear that
under the latter definition, a district may still maintain some vestiges of
past discrimination.
2 • J. Rehnquist further states that a District Court's authority to enjoin a
school district only extends to the point necessary for the district to
remedy past discrimination to the extent practicable, as long as the district
was making a good faith effort to remedy the situation.
Dissent. Justice Thurgood Marshall (J. Marshall) notes that under the SRP, over half of
Oklahoma City's schools have a racial component of at least 90% white or 90% non-
white students. J. Marshall finds this to be persisting segregation and would leave the
decree in place.
Discussion. The majority's primary concern is for returning control of the school districts
to local authorities. They balance the needs of desegregating the schools with the
knowledge that not all segregation is de jure and perfect racial balance is just not possible
in some situations. Reasonable compliance to correct past wrongs is the standard put
forward.
231 Richmond v. J.A. Croson Co.
Richmond v. J.A. Croson Co.
Citation. 488 U.S. 469 (1989).
Brief Fact Summary. The Appellee, J.A. Croson Co. (Appellee) a subcontractor, who
was denied a project under the Minority Business Utilization Plan (the Plan) sued the
Appellant, the City of Richmond (Appellant), alleging that the Plan denied the Appellee
equal protection of the laws in violation of the Fourteenth Amendment of the United
Synopsis of Rule of Law. A state requiring a mathematical quota to remedy a
generalized assertion of past racial discrimination denies non-minority applicants equal
protection.
Facts. The Appellant was approximately 50% black, however, less than 1% of the City's
construction contracts had been awarded to minority businesses in the period from 1978
to 1983. To address this disparity, the City Council conducted public hearings and voted
to approve the Plan, which required 30% of the dollar amount of a prime contract be
subcontracted to Minority Business Enterprises (which were owned/controlled by at least
51% minority members), unless the prime contractor was itself a Minority Business
Enterprise. The Appellee, a non-minority business under the Plan, sued the Appellant,
alleging Equal Protection violations.
Issue. Does the Plan violate the Fourteenth Amendment guarantee of Equal Protection of
the laws?
Held. Yes. Court of Appeals ruling affirmed.
1 • Justice Sandra Day O'Connor (J. O'Connor) noted that the Appellant has
legislative authority over its procurement practices, and may use spending
power to remedy private discrimination. However, J. O'Connor notes that
race-based classifications must be subject to strict scrutiny, that is, they
must serve a compelling government interest and be narrowly tailored to
advance that interest.
2 • A generalized assertion that there had been past discrimination in the
construction industry cannot support this particular remedy. J. O'Connor
invokes an essentially "slippery slope" argument to note that without
particularized findings, any remedy could be plausible without any surety
that it is narrowly tailored to remedy the perceived wrong. In this case, the
30% quota cannot be logically attached to the harm suffered by anyone.
Dissent.
1 • Justice Thurgood Marshall (J. Marshall), dissenting, believes the
Supreme Court of the United States (Supreme Court) is second-guessing
the first-
232 Richmond v. J.A. Croson Co.
1 hand knowledge of discrimination found by the Appellant and represents
an attack on affirmative action programs in general.
2 • J. Marshall believes that "benign" classifications should not be subject to
strict scrutiny, as the majority is admitting that it is disadvantaging itself
and as such, a minority is not being subjugated by its status as a minority.
Concurrence.
1 • Justice John Paul Stevens (J. Stevens), concurring, suggests that racial
classification may be appropriate, if not today, then at some time in the
future, for reasons other than addressing past wrongs, but believes that the
Appellant's ordinance is unconstitutional by the Supreme Court's
reasoning.
2 • Justice Antonin Scalia (J. Scalia) concurs that strict scrutiny must be
applied to all racial classifications, regardless of whether they are
described as remedial or benign. However, he believes that they are
always impermissible under the Fourteenth Amendment of the
Constitution.
Discussion. The principal holding of Richmond v. J.A. Croson is that strict scrutiny must
be applied to all state and local legislation that classifies by race. The majority also
suggests that there are instances where race-based legislation may be narrowly tailored to
remedy past discrimination.
233 Adarand Constructors, Inc. v. Pena
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).

Brief Fact Summary. Adarand Constructors, a low-bidding subcontractor denied a
contract on a federal highway project, sued the Secretary of Transportation, alleging that
the federal governments incentives to hire minority subcontractors denied him equal
protection of the laws.
Synopsis of Rule of Law. Race classification by the federal government is subject to
strict scrutiny.
Facts. Adarand Constructors had submitted the low bid on a subcontract for a federal
highway project. Mountain Gravel, the prime contractor, would receive additional federal
funds for awarding subcontracts to businesses owned by "socially and economically
disadvantaged individuals." Mountain Gravel awarded the contract to a higher bidder on
this basis. The government's policy included a presumption that minority-owned
businesses were socially and economically disadvantaged.
Issue. Does the Fifth Amendment's guarantee of equal protection require the federal
government's racial classifications to withstand strict scrutiny?
Held. Yes. Court of Appeals ruling reversed and remanded. Justice Sandra Day O'Connor
(J. O'Connor), writing for the majority, extends the Fourteenth Amendment requirement
to the states in Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), to the federal
government through the Fifth Amendment. Namely, strict scrutiny is applied to all race-
based classification, regardless of benign or remedial motive.
Dissent. Justice John Paul Stevens (J. Stevens) reiterates his belief that benign or
remedial racial classifications should be subject to a lesser level of review. Given that the
federal statute was intended to remedy past discrimination, J. Stevens argues that it
should be subject to the rational basis test.
Concurrence. Justice Antonin Scalia (J. Scalia) argues again that there can never be a
compelling government interest to justify a racial classification.
Discussion. Adarand extends strict scrutiny to racial classifications at the federal level.
Again, J. O'Connor, leaves the door open for some remedial legislation to pass muster
under strict scrutiny.
234 Grutter v. Bollinger
Grutter v. Bollinger
Citation. 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed. 2d 304 (2003)
Brief Fact Summary. The Petitioner in this matter was Barbara Grutter, (the
"Petitioner"). The Petitioner was a white Michigan resident with a 3.8 grade point
average and 161 LSAT score. The University of Michigan Law School (the "Law
School") initially put the Petitioner on a waiting list. However, the Law School
eventually rejected her application. The Petitioner sued in District Court, alleging the
Law School's admission policy violated the Fourteenth Amendment of the United States
Constitution (the "Constitution").
Synopsis of Rule of Law. The Constitution's Equal Protection Clause does not prohibit a
law school's narrowly tailored use of race in admissions decisions to further a compelling
interest in obtaining the educational benefits that flow from a diverse student body.
Facts. The District Court struck down the Law School's use of race as a valid factor in
their admissions decisions, but an en banc panel of the Court of Appeals reversed. One of
the criteria relied upon by the Law School when deciding who should be admitted, was
the applicant's race. The race and ethnicity portion of the Law School's admission policy
encouraged "racial and ethnic diversity with special reference to the inclusion of students
from groups which have been historically discriminated against, like African-Americans,
Hispanics and Native Americans, who without this commitment might not be represented
in our student body in meaningful numbers." The Law School's goal "[b]y enrolling a "
'critical mass' of [underrepresented] minority students," was to "ensur[e] their ability to
make unique contributions to the character of the Law School." Although race is relied
upon, the Law School's diversity policy did not define diversity solely in racial and ethnic
terms.
Issue.
1 • Whether the use of race by the Law School as a factor in student admissions
is lawful?
2 • Whether the Law School's policy is narrowly drawn to further a compelling
state interest?
Held.
1 • Yes. The Law School has a compelling interest in attaining a diverse student
body because "attaining a diverse student body is at the heart of the Law
School's proper institutional mission". Justice Sandra Day O'Connor ("J.
O'Connor"), writing for the majority, began her analysis by citing and
reaffirming [Bakke], which stood for the proposition that student body
diversity is a compelling state interest, justifying the use of race in university
admissions. J. O'Connor then set forth the appropriate standard of review to
1 be used in analyzing racial classifications. Racial classifications "must be
analyzed by a reviewing court under strict scrutiny", meaning "such
classifications are constitutional only if they are narrowly tailored to further
compelling governmental interests." J. O'Connor refused to read [Bakke] to
mean the only permissible rationale for race-based governmental action was to
remedy past discrimination. If the Law School had defined "critical mass" as a
specified percentage of a particular group that would be patently
constitutional, but here "critical mass" was defined by reference to the
educational benefits that diversity is designed to produce. Universities cannot
adopt strict quotas or insulate minorities from admission competition, but they
can "consider race or ethnicity more flexibly as a 'plus' factor in the context of
individualized consideration of each and every applicant." Here, the Law
School's program to "obtain a critical mass of underrepresented minority
students does not transform its program into a quota." However, just because
there is not a quota, does not mean the requirement of individualized
consideration is satisfied. "When using race as a 'plus' factor in university
admissions, a university's admissions program must remain flexible enough to
ensure each applicant is evaluated as an individual, and not in a way that
makes an applicant's race or ethnicity the defining feature of his or her
application. The importance of this individualized consideration in the context
of a race-conscious admissions program is paramount." J. O'Connor also
stresses the fact the Law School's diversity policy concerns not only race and
ethnicity, but also various other student attributes.
2 • Yes. The "Law School's admissions program bears the hallmark of a
narrowly tailored plan." J. O'Connor stressed in rejecting an argument made
by the Petitioner, narrowly tailored "does not require exhaustion of every
race-neutral alternative" and that the Law School "sufficiently considered
workable race-neutral alternatives." The majority also determined the Law
School's race-based admission program did not "unduly burden individuals
who are not members of the factored racial and ethnic groups."
Concurrence.
1 • Justice Ruth Bader Ginsburg ("J. Ginsburg") and Justice Stephen Breyer ("J.
Breyer") filed a concurring opinion stressing how"conscious and unconscious
race bias, even rank discrimination based on race, remain alive in our land."
Additionally, how "many minority students encounter markedly inadequate
and unequal educational opportunities."
Concurrence/Dissent.
1 • Justice Antonin Scalia ("J. Scalia") and Justice Clarence Thomas ("J.
Thomas") entered an opinion concurring in part and dissenting in part. The
justices were worried about the questions left open by the majority's decision,
and the lawsuits that may result. They feel that the "Constitution proscribes
1 government discrimination on the basis of race, and state-provided education
is no exception."
2 • J. Thomas and J. Scalia entered an opinion concurring in part and dissenting
in part. They "believe[s] blacks can achieve in every avenue of American life
without the meddling of university administrators."
Dissent. Justices William Rehnquist (J. Rehnquist), J. Scalia, Justice Anthony Kennedy
(J. Kennedy) and J. Thomas dissented and argued the Law School's "means are not
narrowly tailored to the interest it asserts" and the type of racial balancing used by the
law school was "patently unconstitutional."
Discussion. This decision, along with the Supreme Court's decision in [Gratz v.
Bollinger] are Supreme Court's most recent regarding affirmative action.
237 Gratz v. Bollinger
Gratz v. Bollinger
Citation. 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed. 2d 257 (2003)
Brief Fact Summary. The Petitioners in this matter were high school students who
applied for admission to, and were rejected from, the University of Michigan's (the
"University") College of Literature, Science, and the Arts ("LSA"). The Petitioners
brought suit alleging LSA's admission policy violated their rights under the Fourteenth
Amendment of the United States Constitution (the "Constitution").
Synopsis of Rule of Law. A policy implemented by a university, "which automatically
distributes 20 points, or one-fifth of the points needed to guarantee admission, to every
single 'underrepresented minority' applicant solely because of race, is not narrowly
tailored to achieve educational diversity."
Facts. The University's LSA College adopted a point system to judge applicants'
admission qualifications. One hundred points would guarantee admission. The University
assigned point values to many factors when determining eligibility for admission, one of
which being race. If an applicant was African-American, Hispanic or Native American,
they were automatically given twenty points, or one-fifth the amount needed for
guaranteed admission. The University's LSA College considered all the Petitioners
"qualified" applicants, but nonetheless denied them admission.
Issue.
1 • Whether the use of race by the University's LSA College as a factor in
student admissions is lawful?
2 • Whether the portion of the University's LSA Colleges' admissions policy
concerning race, is narrowly drawn to further a compelling state interest?
Held.
1 • Yes. See [Bakke] and [Grutter v. Bollinger].
2 • No. Justice Rehnquist ("J. Rehnquist") writing for the majority held "the
University's current policy, which automatically distributes 20 points, or one-
fifth of the points needed to guarantee admission, to every single
'underrepresented minority' applicant solely because of race, is not narrowly
tailored to achieve educational diversity." The majority distinguished [Bakke]
and observed "[t]he admissions program [the Bakke court] described did not
contemplate that any single characteristic automatically ensured a specific and
identifiable contribution to a university's diversity." In other words, the
individual assessment required by [Bakke] is not present.
Concurrence.
238 Gratz v. Bollinger
1 • Justice Sandra Day O'Connor ("J. O'Connor") concurred and distinguished
the facts in [Grutter] from those in the instant case. She observed the
automatic awarding of twenty points based on race "does not provide for a
meaningful individualized review of applicants" on a "case-by-case basis."
2 • Justice Clarence Thomas's ("J. Thomas") concurrence stressed his view that
"a State's use of racial discrimination in higher education admissions is
categorically prohibited by the Equal Protection Clause."
Dissent.
1 • Justice David Souter ("J. Souter") entered a dissenting opinion and
determined that the instant case was more analogous to what [Grutter]
approves then what [Bakke] condemns, and as such should not have been held
unconstitutional.
2 • Justice Ruth Bader Ginsburg ("J. Ginsburg") and J. Souter filed a dissent and
argued "government decisionmakers may properly distinguish between
policies of exclusion and inclusion." Also, "[a]ctions designed to burden
groups long denied full citizenship stature are not sensibly ranked with
measures taken to hasten the day when entrenched discrimination and its after
effects have been extirpated." Further, if race is considered "for the purpose of
achieving equality, "no automatic proscription is in order."
Discussion. This decision, along with the Supreme Court's decision in [Grutter v.
Bollinger] are the Supreme Court's most recent regarding affirmative action. It is
interesting to compare J. Thomas's argument in his Concurrence finding any manner of
affirmative action unconstitutional and J. Ginsburg's and J. Souter's argument that certain
forms of affirmative action are acceptable.
239 Easley v. Cromartie
Easley v. Cromartie
Citation. 532 U.S. 234 (2001)
Brief Fact Summary. The constitutionality of a state legislature's redistricting plan was
at issue.
Synopsis of Rule of Law. "In a case such as this one where majority-minority districts
(or the approximate equivalent) are at issue and where racial identification correlates
highly with political affiliation, the party attacking the legislatively drawn boundaries
must show at the least that the legislature could have achieved its legitimate political
objectives in alternative ways that are comparably consistent with traditional districting
principles. That party must also show that those districting alternatives would have
brought about significantly greater racial balance."
Facts. At issue was whether the North Carolina state legislature used race as a
predominant factor to draw its 12th Congressional District. A three-judge district court
panel concluded it did.
Issue. Was race the "predominant factor" in North Carolina's drawing of the 12th
Congressional District?
Held. No. Justice Stephen Breyer ("J. Breyer"), writing for the majority, first observed
that this issue is entirely evidentiary. The burden of proof is on the party challenging the
district and the burden is a demanding one. What must be shown in arguing that a
majority-minority district was created, at a minimum is that the "legislature subordinated
traditional race-neutral districting principles ... to racial considerations." Race must be the
" 'predominant factor' motivating the legislature's districting decision," not just a
motivation for the line that was drawn. The facially neutral law must be "unexplainable
on grounds other than race." The court additionally observed that districting is generally
in the "legislature's sphere of competence" and as such the legislature must be given room
to accomplish the function. This is "especially [true] where, as here, the State has
articulated a legitimate political explanation for its districting decision and the voting
population is one in which race and political affiliation are highly correlated".
1 • The court decides to review the District Court's findings for "clear error" and
based on that standard must be left with "the definite and firm conviction" that
the District Court's key findings are mistaken." The dissent would apply a
different standard of review. The critical finding made by the district court
was that race instead of politics was the predominant reason the district line
was drawn the way it was. J. Breyer recognized that the District Court's
finding was based on three facts "the district's shape, its splitting of towns and
counties, and its heavily African-American voting population". Due to the
"undisputed evidence that racial identification is highly correlated with
political affiliation in North Carolina, the [three above] facts in and of
themselves cannot, as a matter of law, support the District Court's judgment."
240 Easley v. Cromartie
1 The district court judges attempted to elaborate on these facts, but the majority
disagreed with their findings.
Dissent. Justice Clarence Thomas ("J. Thomas") filed a dissenting opinion joined by
Justice William Rehnquist ("J. Rehnquist"), Justice Anthony Kennedy ("J. Kennedy") and
Justice Antonin Scalia ("J. Scalia"). J. Thomas argued that the decision of the court below
was not clearly erroneous and as such, the court did not commit clear error. J. Thomas
also criticizes standard of review the majority applied. First, the majority erroneously
finds significance in the fact there was no intermediate level of appeal. Second, the courts
reliance on the fact the trial was not lengthy. Third, the majority's treatment of the district
court's findings concerning expert testimony. Finally, the majority's "foray into the
minutiae of the record."
Discussion. Although this case concerns a constitutional issue, it is interesting to
recognize that it really turns on the standard of review that should be applied. The
appropriate standard and its application is where the majority and the dissent differ, not
on the constitutional issues involved.
241 Frontiero v. Richardson
Frontiero v. Richardson
Citation. 411 U.S. 677 (1973).
Brief Fact Summary. A female Air Force Lieutenant sought increased benefits on the
basis of her husband as a dependent, which were refused by the armed services' policy of
only allowing men to claim wives presumptively as dependents.
Synopsis of Rule of Law. Gender-based classifications, like racial classifications, must
pass strict scrutiny.
Facts. By statute, a serviceman may claim his wife as a dependent for purposes of
qualifying for increased quarters, medical and dental benefits, and other increased
support. However, a servicewoman may claim her husband as a dependant only if he is
dependent on her for more than half of his support. The Petitioner, Frontiero (Petitioner),
alleges that this policy denies her the equal protection of laws afforded by the Fifth
Issue. Does the statute offering different spousal benefits for servicemen on the basis of
gender violate the Fifth Amendment's guarantee of equal protection?
1 • Justice William Brennan (J. Brennan) notes that women have a past
history of discrimination against them in the United States and thus a
requirement of strict scrutiny for gender-based classifications is
appropriate.
2 • The government offered no concrete evidence suggesting that there is
any actual administrative time or cost saving by this classification. Even
so, J. Brennan notes that, "[W]hen we enter the real of 'strict judicial
scrutiny,' there can be no doubt that "administrative convenience" is not a
shibboleth."
Concurrence. Justice Lewis Powell (J. Powell) concurs in the judgment, but disagrees
that sex-based classifications are always suspect and subject to strict scrutiny.
Discussion. J. Brennan argues that gender-based classifications are always subject to
strict scrutiny. J. Powell stops short of this, arguing that such a ruling would have far-
reaching implications with respect to inherent differences between the sexes.
242 Craig v. Boren
Craig v. Boren
Citation. 429 U.S. 190 (1976).
Brief Fact Summary. Oklahoma State maintained different drinking ages between men
and women for the consumption of 3.2% alcohol beer. The Appellant, Craig (Appellant),
now alleges that this difference violates the Fourteenth Amendment of the United States
Synopsis of Rule of Law. Gender-based classifications must satisfy intermediate
scrutiny requirements to pass constitutional muster.
Facts. The State of Oklahoma prohibited the sale of "nonintoxicating" 3.2% alcohol beer
to men under the age of 21 and women under the age of 18. Suit was brought against the
State, alleging the law violated the Equal Protection clause of the Fourteenth Amendment
of the Constitution.
Issue. Does the Oklahoma statute violate the Equal Protection clause of the Fourteenth
Held. Yes. Appeals Court ruling reversed and remanded.
1 • Justice William Brennan (J. Brennan) argues that case precedent dictates
that an intermediate level of scrutiny should be applied in analyzing the
statute. Specifically, the gender-based classification must serve an
important government objective and be substantially related to the
achievement of such objective.
2 • The District Court unequivocally found that the objective to be served by
the statute is increased traffic safety. J. Brennan is not persuaded by the
Appellees', Craig and others (Appellees), statistics that the statute closely
serves the stated objective. As such, it is not constitutional.
Dissent. Justice William Rehnquist (J. Rehnquist) dissents on two levels. He believes that
rational basis analysis is the appropriate level of scrutiny for gender-based classification.
Furthermore, he believes that the intermediate scrutiny applied by the Supreme Court of
the United States (Supreme Court) is so "diaphanous and elastic" as to encourage judicial
prejudice.
Discussion. Craig v. Boren establishes intermediate scrutiny as the appropriate level of
review for gender-based classification. Intermediate scrutiny is distinguished from strict
scrutiny at both the objective and means levels. Important government objectives
(intermediate) v. compelling government objectives (strict) and substantially related
(intermediate) v. narrowly tailored (strict).
243 United States v. Virginia
United States v. Virginia
Citation. 518 U.S. 515 (1996).
Brief Fact Summary. The Virginia Military Institute (VMI) was the only single-sex
collegiate institution run by the State of Virginia. The Petitioner, the United States
(Petitioner), maintained that the Respondent, Virginia's (Respondent), exclusion of
women from VMI violated the equal protection guarantee of the Fourteenth Amendment
Synopsis of Rule of Law. A state may not preclude one gender or the other from
participating in a unique educational environment solely on the basis of gender.
Facts. VMI has a long tradition of providing a rigorous, military style college experience
to its undergraduate students. Since its founding in 1839, VMI has been an exclusively
male institution. After a negative ruling by the Fourth Circuit Court of Appeals, the
Respondent attempted to create a separate women's program at a coeducational
institution. However, it was clear that the qualifications of the faculty and students at the
parallel institution for women were inferior to VMI's in several indicators.
Issue.
1 • Does the current system of excluding women solely on the basis of race
from VMI violate equal protection?
2 • If so, what is the appropriate remedy?
Held. The current system violates the Fourteenth Amendment of the Constitution and the
appropriate remedy is to admit women to VMI.
1 • Justice Ruth Bader Ginsburg (J. Ginsburg) notes that heightened (that is,
intermediate) scrutiny is the appropriate level of review for gender-based
discrimination.
2 • J. Ginsburg concedes that there are pedagogical benefits to having
single-sex educational institutions, but that the Respondent had not
established that VMI was established or maintained, with regard to its
exclusion of women, for diversifying educational opportunities in
Virginia.
3 • J. Ginsburg categorically denies that VMI's "adversative method of
training" is incompatible with accepting women, as the VMI's methods
were well known to those familiar with the school, and the student body
was self-selecting in this regard.
Dissent. Justice Antonin Scalia (J. Scalia) views the majority opinion as shutting down a
traditional institution and that intermediate review is inappropriate in gender-based
classification cases.
244 United States v. Virginia
Discussion. Interestingly, the majority opinion leaves open the door to separate, but equal
institutions of learning for men and women. Much of the Supreme Court of the United
States' disapproval of VMI's single-sex education lies not with its single-sex character,
but rather with the lack of comparable opportunities for women within Virginia's state
colleges. It was the denial to women of the uniqueness of the opportunities afforded by
VMI that Virginia was unable to justify under intermediate scrutiny.
245 Geduldig v. Aiello
Geduldig v. Aiello
Citation. 417 U.S. 484 (1974).
Brief Fact Summary. California operated a disability insurance system that paid benefits
to employees of private employers when workers compensation did not cover certain
disabilities that prevented those employees from working. However, many pregnancy
related disabilities were excluded from coverage because of expenses to the program.
Synopsis of Rule of Law. Underinclusive legislation is appropriate under the Equal
Protection Clause, so long as the line drawn by the State is "rationally supportable."
Facts. California operated a disability insurance system that supplemented workers
compensation, in that it provided for payments for disabilities not covered by workers
compensation. The list of disabilities paid for by the State of California was not
exhaustive. Among those disabilities not paid for were certain pregnancy related
conditions. Suit was brought challenging the system as an unconstitutional gender-based
classification.
Issue. Does the exclusion of the pregnancy-related conditions violate the Fourteenth
Amendment's Equal Protection Clause?
Held. No. Appeals Court ruling affirmed.
1 • The list of conditions covered by the disability insurance system is not
exclusive. Furthermore, there are conditions not covered by the system
that affect both men and women. The excluded conditions do not affect
women alone.
2 • The savings given the program by the exclusion of such conditions
benefit both men and women. That is, inclusion of the excluded conditions
would result in lesser amounts of funding for all other conditions.
Dissent. Justice William Brennan (J. Brennan) argues that by disallowing payments
related to pregnancy, the State inevitably discriminates against women.
Discussion. The majority reaches its conclusions through viewing the problem as one of
underinclusive legislation, while the dissent focuses on the inevitable connection of the
unfunded conditions with a single sex.
246 Orr v. Orr
Orr v. Orr
Citation. 440 U.S. 268 (1979).
Brief Fact Summary. Laws of the State of Alabama would require men in some cases to
pay alimony on divorce, but women were in no case required to pay alimony.
Synopsis of Rule of Law. Without an important state interest and substantially related
means, the State may not classify on the basis of sex.
Facts. This case arises out of a petition for divorce. The Alabama courts would review
the financial status of both partners during the proceedings to determine whether or not
the husband owed alimony to the wife. The husband in this particular divorce argued that
the law denied him equal protection.
Issue. May the state restrict alimony payments in a manner that discriminates on sex?
Held. No.
1 • In the present case, the State of Alabama argues that sex is a proxy for
need of financial assistance. As the finances of both parties to the divorce
are examined to determine whether a husband owes alimony, this assertion
cannot even support a claim of administrative convenience.
2 • Because a gender-neutral classification serves the State's purposes just as
well as a gender-based classification, the State cannot be permitted to
classify on the basis of sex.
Discussion. Orr v. Orr is a very straightforward decision. The State cannot argue that a
classification is a proxy for financial need when financial need is a necessary
determination in the particular case to begin. Combined with the intermediate scrutiny
afforded gender classification legislation, the statute is clearly unconstitutional.
247 Mississippi University for Women v. Hogan
Mississippi University for Women v. Hogan
Citation. 458 U.S. 718 (1982).
Brief Fact Summary. The Respondent, Hogan (Respondent), was denied admission to
Mississippi University for Women's (MUW) nursing program solely on the basis of
gender. He now alleges this is a denial of equal protection.
Synopsis of Rule of Law. A state may not preclude one gender or the other from
participating in a unique educational environment solely on the basis of gender.
Facts. MUW is the only single-sex collegiate institution maintained by the State of
Mississippi. The Respondent was otherwise qualified for admission to the school's
nursing program, but he was denied admission on the basis of being male.
Issue. Does the operation of a female only nursing school by a State violate Equal
Protection?
Held. Yes. Appeals Court ruling affirmed.
1 • Applying intermediate scrutiny, Justice Sandra Day O'Connor (J.
O'Connor) notes that the State of Mississippi has not advanced an
important state interest for operating a single sex nursing school. In
particular, she notes that women did not lack opportunities to be trained as
nurses in Mississippi without the presence of MUW.
2 • J. O'Connor also argues that the means to achieving even an important
governmental objective (although she found none) are absent, as MUW
allows male auditors in the nursing classes. If men are already in the
classroom, the state is not technically operating a single-sex nursing
program.
Dissent. Justice Lewis Powell (J. Powell) argues that the Respondent has not suffered a
cognizable injury, as there were state-operated nursing programs that accepted men
elsewhere in the state and there is no right to attend a state-run university close to one's
hometown.
Discussion. The majority focuses on whether Mississippi may discriminate against men
in admission to nursing programs. However, there are two powerful arguments brought
up by the dissent. The first is the lack of injury argument - without injury a case is not
ripe, and the constitutional issue may not be reached. There is also the argument that as
there is no unique educational opportunity here (there are nursing programs accepting
men in the State college system), the state is not denying opportunities to men.
248 Michael M. v. Superior Court of Sonoma County
Michael M. v. Superior Court of Sonoma County
Citation. 450 U.S. 464 (1981).
Brief Fact Summary. The Petitioner, Michael M. (Petitioner), was charged with
statutory rape in California and now alleges that the State's statute discriminates
unconstitutionally against men only.
Synopsis of Rule of Law. A state may provide for punishment only for males to equalize
deterrents to teenage pregnancy.
Facts. The Petitioner, at the time of the complaint, was a 17-year-old male who had
sexual intercourse with a 16-year-old female. Because California's statute only
criminalized such behavior in males, the female involved was not charged with any
crime. The Petitioner now alleges that this disparity in the statutory rape laws is in
violation of the Equal Protection Clause of the Fourteenth Amendment of the United
Issue. Does the California statutory rape statute violate principles of Equal Protection?
1 • Justice William Rehnquist (J. Rehnquist) does not specifically refer to
the application of intermediate scrutiny. However, J. Rehnquist gives great
deference to the fact that the State's alleged objective was to deter teenage
pregnancies.
2 • The majority states that a state may attack the stated objective directly by
prohibiting the conduct only of males. The reasoning behind this assertion
is that females already have significant deterrence to abstain from the
behavior, namely pregnancy itself and its attendant difficulties.
Dissent.
1 • Justice William Brennan (J. Brennan) applies intermediate scrutiny to
achieve the opposite result from the majority. J. Brennan concedes that
preventing teenage pregnancy is an important objective.
2 • However, J. Brennan argues that California still bears the burden of
demonstrating that the gender-based statute is more effective at decreasing
teenage pregnancies than a gender-neutral statute. More importantly, the
State cannot show that a gender-neutral statute would be less effective
than the gender-based statute.
3 • Justice John Paul Stevens (J. Stevens) dissents, arguing that since both
parties are equally guilty of the conduct, it is perversely partial for the
State to only punish a single party.
249 Michael M. v. Superior Court of Sonoma County
Discussion. It is hard to square the majority's decision with the holding in Orr v. Orr, 440
U.S. 268 (1979), that says where compensatory and ameliorative purposes are "as well
served by a gender-neutral classification as one that gender classifies," the State cannot
classify by gender. It is difficult to understand why this should be so in a remedial statute,
but not a criminal statute.
250 Rostker v. Goldberg
Rostker v. Goldberg
Citation. 453 U.S. 57 (1981).
Brief Fact Summary. Plaintiff's brought suit, alleging the Military Selective Service Act
(MSSA) violates the Equal Protection Clause of the Fifth Amendment of the United
Synopsis of Rule of Law. The federal government may classify on the basis of race, but
only when there is an important government interest and the means are substantially
related to the interest.
Facts. The MSSA requires all males between the ages 18 to 26 to register with the
Selective Service. The purpose of the MSSA is to allow the armed services to select men
in the event that a military draft is necessary. Women are not required to register with the
Selective Service.
Issue. May the federal government require only males to register with the Selective
Service?
Held. Yes.
1 • Justice William Rehnquist (J. Rehnquist) writes for the majority, noting
that the primary objective for the MSSA is to provide a supply of combat
troops in times when a military draft is necessary, clearly an important
government interest.
2 • As to the means, J. Rehnquist notes that only men (as a group) are
eligible for combat duty. Because of this, registering all women is a
substantial administrative inconvenience for a small degree of payoff. Men
and women are thus differently situated for purposes of a draft.
Furthermore, most non-combat positions are filled by combat-ready troops
that are rotated with other troops, further diminishing the payoff from the
registration of women.
Dissent. Justice Byron White (J. White) dissents, arguing that there are jobs that can be
performed by persons ineligible for combat duty. As such, there is no reason that
Congress cannot recruit women for these positions.
Discussion. Again, J. Rehnquist does not use the intermediate scrutiny terminology,
although it may clearly be applied to the case at bar. There is an important government
interest (providing for a draft) and a substantially related means to achieve the interest
(requiring only men to register, where only men are eligible for combat as a group).
251 Califano v. Webster
Califano v. Webster
Citation. 430 U.S. 313 (1977).
Brief Fact Summary. The Social Security old-age insurance benefits are calculated
differently for men and women, with the result that women's benefits are skewed slightly
toward their later (higher earning) years, qualifying women for slightly greater benefits.
Synopsis of Rule of Law. The government may enact remedial legislation to benefit
women in areas where they have been traditionally discriminated against.
Facts. Prior to 1972, there was a difference between the method for calculating old-age
insurance benefits for men and women. In particular, the benefits were calculated based
on the use of "average monthly wages," which were calculated during the period from
1950 until a male turned 65 or a female turned 62. Therefore, a female averages three
fewer years than a male in the calculation, resulting in a slightly higher average than a
male.
Issue. Is this disparity of methods between sexes proper under the Fifth Amendment of
the United States Constitution (Constitution)?
Held. No. The Supreme Court of the United States (Supreme Court) reiterates the
holding of Craig v. Boren, 429 U.S. 190 (1976), saying that a classification based on
gender must serve an important government interest and be substantially related to
achieving that interest. Citing the historical wage gap between men and women, the
Supreme Court views that allowing women to eliminate three low-wage years from their
calculation, remedies some part of this discrimination.
Discussion. At first glance, Califano seems at odds with Croson, 488 U.S. 469 (1989),
where the Supreme Court ruled that a generalized allegation of past racial discrimination
is not enough to justify remedial legislation. However, racial classification is subject to
strict scrutiny, while gender classification is subject to intermediate scrutiny. Hence, the
governmental action here is not required to be narrowly tailored to meet the sought end.
252 Nguyen v. Immigration and Naturalization Service
Nguyen v. Immigration and Naturalization Service
Citation. 533 U.S. 53 (2001)
Brief Fact Summary. A statute governing how citizenship for a child born outside the
United States must be proven was at issue.
Synopsis of Rule of Law. In order for a classification based on gender to be upheld
under the Equal Protection Clause, "it must be established 'at least that the [challenged]
classification serves "important governmental objectives and that the discriminatory
means employed" are "substantially related to the achievement of those objectives.' "
Facts. The Petitioner, Tuan Ahn Nguyen (the "Petitioner"), was born on September 1,
1969 in Vietnam to the Copetitioner, Joseph Boulais (the "Copetitioner"), a United States
citizen, and an unnamed Vietnamese citizen. The Petitioner was raised in Texas by the
Copetitioner. In 1992, the Petitioner pled guilty to two counts of sexual assault on a child.
Three years later, the Respondent, the United State Immigration and Naturalization
Service (the "INS"), began deportation proceedings against the Petitioner. The
Immigration Judge found the Petitioner deportable. At these proceedings the Petitioner
argued he was a Vietnamese Citizen. The Petitioner appealed to the Board of
Immigration Appeals (the "Board"). While the Appeal before the Board was pending, the
Copetitioner acquired an order of parentage from state court demonstrating the Petitioner
was his son. The Board rejected the Petitioner's claim that he was a United States Citizen,
because it found the Petitioner did not comply with 8 U.S.C. §1409(a), which sets for the
criteria for someone "born out of wedlock and abroad to a citizen father and a noncitizen
mother" to obtain citizenship. The Petitioner and the Copetitioner appealed, but the 5th
Circuit rejected their claim that 8 U.S.C.§1409(a) violated the Equal Protection Clause
("EPC").
Issue. Whether Title 8 U.S.C. §1409, concerning acquisition of United States citizenship
by children with one parent who is a United States citizen and one that is not, violates the
"equal protection guarantee embedded in the Due Process Clause of the Fifth
Amendment", because the requirements are different depending on whether the mother or
father of the child is the citizen>
Held. No, it does not violate the Equal Protection Clause. Justice Anthony Kennedy ("J.
Kennedy") writing for the majority first lays out the relevant statutory language. J.
Kennedy then observed "Section 1409(a) [ ] imposes a set of requirements on the
children of citizen fathers born abroad and out of wedlock to a noncitizen mother that are
not imposed under like circumstances when the citizen parent is the mother." The court
observed "[t]he statutory distinction relevant in this case, then, is that § 1409(a)(4)
requires one of three affirmative steps to be taken if the citizen parent is the father, but
not if the citizen parent is the mother: legitimation; a declaration of paternity under oath
by the father; or a court order of paternity." Further, "Congress' decision to impose
requirements on unmarried fathers that differ from those on unmarried mothers is based
on the significant difference between their respective relationships to the potential citizen
at the time of birth. Specifically, the imposition of the requirement for a paternal
relationship, but not a maternal one, is justified by two important governmental
objectives."
1 • In order for a classification concerning gender to be upheld under the EPC,
"it must be established at least that the [challenged] classification serves
'important governmental objectives and that the discriminatory means
employed' are 'substantially related to the achievement of those objectives.' "
2 • The first governmental interest is ensuring that the parents are actually the
biological parents of the child. It is very easy to prove that the mother is the
biological mother of the child from the birth itself. Additionally, from the
"birth certificate or hospital records and the witnesses who attest to her having
given birth." As to the father, it is more difficult because he need not be
present at the birth and even if he is present that does not mean he is the
child's natural father. As such, "[f]athers and mothers are not similarly situated
with regard to the proof of biological parenthood. The imposition of a
different set of rules for making that legal determination with respect to
fathers and mothers is neither surprising nor troublesome from a constitutional
perspective."
3 • The second governmental interest is "the determination to ensure that the
child and the citizen parent have some demonstrated opportunity or potential
to develop not just a relationship that is recognized, as a formal matter, by the
law, but one that consists of the real, everyday ties that provide a connection
between child and citizen parent and, in turn, the United States." The court
observes "[i]n the case of a citizen mother and a child born overseas, the
opportunity for a meaningful relationship between citizen parent and child
inheres in the very event of birth, an event so often critical to our
constitutional and statutory understandings of citizenship. The mother knows
that the child is in being and is hers and has an initial point of contact with
him. There is at least an opportunity for mother and child to develop a real,
meaningful relationship." On the other hand, however, "[t]he same
opportunity does not result from the event of birth, as a matter of biological
inevitability, in the case of the unwed father. Given the 9-month interval
between conception and birth, it is not always certain that a father will know
that a child was conceived, nor is it always clear that even the mother will be
sure of the father's identity. This fact takes on particular significance in the
case of a child born overseas and out of wedlock." This difference is
necessitated by the shear amount of trips citizens today make to foreign
countries. Further, the father may not even know of the conception, and even
if they know about the conception, they may not know about the birth.
Accordingly, there are no assurances that the father will actually ever meet the
child. The court concludes, "Congress is well within its authority in refusing,
absent proof of at least the opportunity for the development of a relationship
between citizen parent and child, to commit this country to embracing a child
as a citizen entitled as of birth to the full protection of the United States, to the
1 absolute right to enter its borders, and to full participation in the political
process."
Dissent. Justice Sandra Day O'Connor ("J. O'Connor") filed a dissenting opinion, which
Justice David Souter ("J. Souter"), Justice Ruth Bader Ginsburg ("J. Ginsburg") and
Justice William Breyer ("J. Breyer") joined. J. O'Connor would reverse the Court of
Appeals because "the Immigration and Naturalization Service (INS) has not shown an
exceedingly persuasive justification for the sex-based classification embodied in 8 U.S.C.
§ 1409(a)(4)--i.e., because it has failed to establish at least that the classification
substantially relates to the achievement of important governmental objectives." Although
the majority says it applied heightened scrutiny, the dissent contends the majority did not
any only says that is what it did.
1 • J. O'Connor criticizes the majority for hypothesizing about the statutes'
purpose, but not determining the statutes actual purposes. Additionally, the
dissent argued the majority incompletely explains the importance of the
interests served by this statutory provision. Further, the majority dismisses the
availability of sex-neutral alternatives. Finally, the fit between the means and
the ends of the questionable statutory provision is "far too attenuated for the
provision to survive heightened scrutiny." In the dissents eyes, the interests
stressed by the majority may satisfy rational basis review, but not the
heightened review reserved for sex based classifications.
Discussion. It is interesting to read this case alongside cases that apply rational basis
review or heightened scrutiny, and try to see whether the majority actually applied
heightened scrutiny or if as the dissent contends, the court applied rational basis review.
255 Graham v. Richardson
Graham v. Richardson
Citation. 403 U.S. 365 (1971).
Brief Fact Summary. Arizona required State residents to be a United States citizen or a
resident of the United States for at least fifteen years to be eligible for welfare benefits.
Synopsis of Rule of Law. Restrictions based on alienage are generally subject to strict
scrutiny.
Facts. The Respondent, Richardson (Respondent), was denied welfare benefits solely on
the basis of being a resident alien who has resided for less than fifteen years in the
country. The Respondent alleges that the residency requirement of the Arizona welfare
statutes is unconstitutional under the Equal Protection Clause of the Fourteenth
Issue. May Arizona distinguish between resident aliens and citizens under the Fourteenth
Held. No. Court of Appeals ruling affirmed.
1 • Justice Harry Blackmun (J. Blackmun) also notes that a "person" for the
purposes of the Fourteenth Amendment encompasses both resident aliens
and citizens, thereby affording legal aliens equal protection of the laws.
2 • J. Blackmun, writing for the Supreme Court of the Untied States
(Supreme Court), declares that restrictions based on alienage are akin to
classifications based on race or nationality, in that they are subject to strict
scrutiny.
3 • The Supreme Court concludes that the State's "desire to preserve limited
welfare benefits for its own citizens" is not a compelling government
interest for purposes of strict scrutiny, and thus the statute is
unconstitutional.
Discussion. The important holding of Richardson is that aliens are entitled to Fourteenth
Amendment protection and that in general, statutes based on alienage are subject to strict
scrutiny.
256 Foley v. Connelie
Foley v. Connelie
Citation. 435 U.S. 291 (1978).
Brief Fact Summary. New York State law prohibited non-citizens from being appointed
state policemen. The Appellant, Edmund Foley (Appellant), was refused the opportunity
to sit for the state police exam on the basis of his alien status.
Synopsis of Rule of Law. When a state acts within its constitutional prerogatives, its
classifications based on alienage are subject only to rational basis scrutiny.
Facts. New York law prohibited non-citizens from becoming state police officers. When
the Appellant was denied the opportunity to sit for the state police exam because of his
resident alien status, he sued, alleging denial of equal protection.
Issue. May a State discriminate between aliens and citizens in comprising its police
force?
Held. Yes, as long as there is a rational basis for such distinction. Appeals Court ruling
affirmed.
1 • Chief Justice Warren Burger (J. Burger) wrote for the majority that strict
scrutiny in all areas where alien status is used restrictively would
"obliterate all distinctions between citizens and aliens." J. Burger notes
that a State may deny the right to vote, run for office, or sit on juries to
non-citizens, as these are "at the heart of our political institutions." The
police power, as well, is an extension of the political life of the
community.
2 • For the same reason that non-citizens do not sit in trial over citizens, the
state has an interest in not allowing non-citizens to invade the privacy of
citizens and to allow non-citizens to exercise the discretionary powers of
police officers against citizens.
Dissent. Justice Thurgood Marshall (J. Marshall) argues that loosening of the level of
review in the present case is inappropriate. He argues that the position of police officer
does not require policy-making and as such, is not incompatible with integrity of the
political process.
Discussion. The majority changes the standard of review in certain situations, namely
where the State is legislating within its "constitutional prerogative." Strict scrutiny is no
longer appropriate, but rather rational basis.
257 Ambach v. Norwick
Ambach v. Norwick
Citation. 441 U.S. 68 (1979).
Brief Fact Summary. The Respondents, Norwick and Dachinger, are resident aliens
denied teaching certificates by the State of New York solely on the grounds of their lack
of United States citizenship.
Synopsis of Rule of Law. Education, like the police power, represents a "fundamental
obligation of [state] government," and thus allows rational distinctions based on alienage.
Facts. New York education statutes forbid the certification of any perspective teacher
who is eligible for United States citizenship, but refuses to seek naturalization. The
Respondents both are foreign citizens eligible to seek naturalization who have refused to
do so. Their refusal to seek naturalization is the sole requirement for certification as a
teacher that they have not met. They brought suit, alleging that the requirement denies to
them equal protection of laws.
Issue. May the State deny teaching certification on the basis of alienage without violating
the Fourteenth Amendment's Equal Protection Clause?
Held. Yes. Appeals Court ruling reversed and remanded.
1 • Justice Lewis Powell (J. Powell) argues that the unequivocal bond that
citizenship establishes makes it a rational distinguishing trait for the
purposes of a state exercising its governmental functions. This he
compares to the police power discussed in Foley, 435 U.S. 291 (1978).
2 • In particular, J. Powell notes that a teacher "has an opportunity to
influence the attitudes of students toward government, the political
process, and a citizen's social responsibilities." An oath of allegiance, he
feels, is not a suitable substitute for citizenship itself.
Dissent. Justice Harry Blackmun (J. Blackmun) argues that the New York Statutes in
question are irrational. In particular, he believes that the statute takes educational
opportunities away from students.
Discussion. Norwick extends the rational basis test to more tangential areas of
government function. Under the majority's reasoning in Norwick, there is no clear
horizon to a State's ability to discriminate against legal aliens as government employees.
The Supreme Court of the United States (Supreme Court) argues that hiring support staff
would not raise a legitimate state interest in discrimination. The majority says that the
horizon is the ability to influence policy. However, the dissent argues that a teacher is not
in such a position, as indeed the dissent in Foley had argued about police.
258 Plyler v. Doe
Plyler v. Doe
Citation. 457 U.S. 202 (1982).
Brief Fact Summary. Texas denied the children of illegal immigrants free public
education. Legal representatives of such children brought suit, alleging Texas's statute
violated the Equal Protection Clause of the Fourteenth Amendment of the United States
Synopsis of Rule of Law. The State may not deny free public education to the children
of undocumented immigrants.
Facts. Texas law denied the right of undocumented children to attend public schools that
were free to United States citizens and legal aliens.
Issue. May Texas deny undocumented children access to public schools without violating
the Fourteenth Amendment of the Constitution?
1 • Justice William Brennan (J. Brennan) suggests that denial of benefits to
those whose own conduct has brought them unlawfully into the State may
be acceptable under the Fourteenth Amendment of the Constitution.
However, the children are not in the State because of their own conduct. J.
Brennan argues that punishing the parents' illegal conduct by denying
benefits to their children does not "comport with fundamental conceptions
of justice."
2 • The majority argues that the inability to read and write is an enormous
cost to bear for any possible benefits the denial of access would accrue.
Because the undocumented aliens cannot be a suspect class (by definition)
and education is not considered a fundamental right, strict scrutiny is
inappropriate. However, as the proposed state action will impose a
"lifelong hardship," the majority argues that a substantial goal must be
furthered for the statute to be rational. According to the majority, no such
showing is made.
Dissent. Chief Justice Warren Burger (J. Burger) notes that "the level of scrutiny
employed to strike down the Texas law applies only when illegal aliens children are
deprived of a public education," and accuses the Supreme Court of the United States
(Supreme Court) of adopting a results-oriented approach. In the end, the dissent argues
that illegal aliens have no expectation of any public benefits from the country in which
they reside illegally.
Discussion. In a cynical view, the majority is trying to create a ruling that supports equity
and fair play (why should children suffer for the illegal acts of their parents?), while the
dissent argues that illegal aliens should be availed of nothing from the
259 Plyler v. Doe
government whose laws they have circumvented, neither with a firm grounding in the
language of the Constitution.
260 Massachusetts Board of Retirement v. Murgia
Massachusetts Board of Retirement v. Murgia
Citation. 427 U.S. 307 (1976).
Brief Fact Summary. Massachusetts law requires state police officers to retire upon
turning 50 years old. The Respondent, Murgia (Respondent), argues that this compulsory
retirement denies him equal protection under the laws.
Synopsis of Rule of Law. Age classifications are only subject to rational basis review.
Facts. The Respondent was an officer in the uniformed branch of the Massachusetts State
Police. Upon his 50th birthday, the Respondent was required to comply with state law
and retire, although a physical examination just four months prior had determined the
Respondent to be healthy and capable of all his job functions. The Respondent brought
suit in United States District Court, alleging that the compulsory retirement law for
Massachusetts State Police denied him of equal protection under the law.
Issue. May Massachusetts use an age classification to determine compulsory retirement
of its police officers?
Held. Yes. Appeals Court ruling reversed.
1 • The Supreme Court of the United State's (Supreme Court) majority states
that although there has been age discrimination in the past and at present,
it does not represent the same type of "purposeful unequal treatment" that
has been shown on the basis of race or national origin. As such, the
Supreme Court states that rational basis review is the proper level of
scrutiny in the current case.
2 • Police work can be physically arduous and the individual officers must
be capable of executing their duties fully in the interest of public safety.
As individuals grow older, they are no longer as physically able as
individuals in their 20's and 30's. Although Massachusetts requires routine
physicals annually for all officers over the age of 40, there is no
requirement that it base retirement solely on the results of these physicals.
There is a rational basis for using a set age as a proxy, and hence, the
Supreme Court finds no equal protection violation.
Dissent. Justice Thurgood Marshall (J. Marshall) dissents, arguing that the right to work
is a fundamental right and hence proper for a heightened level of scrutiny, as well as that
the discrimination against the elderly is more widespread and systemic than the Per
Curiam opinion admits.
Discussion. The central holding of Murgia is that age classifications are subject only to
rational basis review. Given the relatively small gain in administrative convenience in the
present case (officers approaching 50 are physically examined annually, anyhow), one
might argue that the majority is looking at the larger picture of how age classifications
261 Massachusetts Board of Retirement v. Murgia
are used in this country (for example, driver's licensing, drinking age, voting rights,
statutory rape, etc.).
262
CHAPTER VIII.
Fundamental Rights
Under Due Process And
Equal Protection
263 Zablocki v. Redhail
Zablocki v. Redhail
Citation. 434 U.S. 378 (1978).
Brief Fact Summary. The Respondent, Redhail (Respondent), was denied a marriage
license by the State of Wisconsin under a statute requiring a court order prior to marriage
of Wisconsin residents with non-custodial minor children to whom they owe a duty of
support.
Synopsis of Rule of Law. Marriage is a fundamental right, which requires a compelling
state interest and a sufficiently related means before the state may infringe upon it.
Facts. The Respondent has an out-of-wedlock minor daughter, for whom he is under a
court order to provide monetary support. The Respondent has been unemployed for long
periods of time and at the time of the suit is over $3,700 behind in his support payments.
The Respondent's marriage license of September 27, 1974 was denied on grounds that he
did not procure a court order granting explicit permission for the marriage to proceed. It
is uncontested that the Respondent could not receive such an order because of statutory
limitations and his arrearages in child support.
Issue. Is the Wisconsin statute's interference with the right to marry a violation of the
Fourteenth Amendment's Equal Protection Clause?
1 • Justice Thurgood Marshall (J. Marshall) wrote for the majority. He cites
precedent that marriage is a fundamental right and that the classification at
issue significantly interferes with the exercise of the right. Because of this,
the State must show a compelling interest in the interference and show that
the means chosen to do so are sufficiently related to the interest.
2 • The challenged statute was originally to be a counseling device,
requiring individuals with support obligations to children from previous
relationships to be counseled before entering into a new marriage and
perhaps incurring other support obligations. The court was then to give
automatic permission for the marriage. However, this does not resemble
the enacted statute.
3 • The statute as enacted is supposed to aid in collection of child support. In
the case of individuals unable to meet the requirements, no money is given
to the supported children, but the right to marry is withheld from the
individual. As such, the statute does not add any new collection devices.
Because of the broad infringement of the statute, the means are not
sufficiently related to the government interest advanced.
264 Zablocki v. Redhail
Dissent. Justice William Rehnquist (J. Rehnquist) argues that marriage is not such a
fundamental right as to trigger strictest scrutiny. He rather argues for rational basis
review. J. Rehnquist argues that the statute at bar passes rational basis review.
Concurrence. Justice Potter Stewart (J. Stewart) concurred in the judgment, but believe
that rather than invalidating the statute on Equal Protection grounds, the Supreme Court
of the United States (Supreme Court) should have invalidated it as an impermissible
regulation of marriage that invades the sphere of liberty protected by the Due Process
Clause of the Fourteenth Amendment of the United States Constitution (Constitution).
Discussion. The three opinions given illustrate that the lens through which a case is
viewed may result in vastly different analysis. The majority opinion focuses on two
classes: Wisconsin residents without obligations to non-custodial, dependent minor
children and Wisconsin residents with support obligations toward such children. J.
Stewart's concurrence does not view the case as one of discriminatory classifications, but
one of unwarranted state intrusion into private matters of citizens. J. Rehnquist argues
that marriage is not a fundamental right and thus Wisconsin is not producing a
discriminatory class or intruding into personal liberties.
265 Michael H. v. Gerald D.
Michael H. v. Gerald D.
Citation. 491 U.S. 110 (1989).
Brief Fact Summary. Michael H. impregnated Carole D. while she was still married to
Gerald D., but the State of California's paternity laws do not allow him to challenge the
paternity of his daughter, as she was born while Carole and Gerald D. were still married
and cohabiting.
Synopsis of Rule of Law. The State has a legitimate interest in protecting the parental
rights of a married couple having a child to the exclusion of the parental rights of a
biological father.
Facts. The situation at bar is sordid and convoluted. In short, Michael H. impregnated
Carole D. while she was still married and living with Gerald D. The child born from their
encounter, Victoria D., has Gerald D. recorded as her father on her birth certificate.
Carole and Gerald for many years commencing with the child's birth, held Victoria out
publicly as their own offspring. However, DNA tests show that Michael H. is over 98%
certainly Victoria's biological father. While Carole D. and Gerald D. were separated,
Michael H. and Carole D. lived together with Victoria D. and held her out publicly as
their child. Carole D. and Gerald D. have since divorced and Carole D. has married Scott
K. Michael H. now sues for parental rights over Victoria D. California's paternity laws
conclusively presume that the issue (child) of a wife cohabiting with her non-impotent or
sterile husband is a child of the marriage. This presumption may only be challenged by
the husband or wife within the first two years of marriage.
Issue. Do California's paternity statutes deprive Michael H. of a fundamental right to
have parental contact with his child?
Held. No. Ruling affirmed.
1 • Justice Antonin Scalia (J. Scalia) refutes Michael H.'s contention that
biological fatherhood and an existing parent-child relationship entitle him
to prove paternity of Victoria D. Specifically, J. Scalia notes that there is
no established tradition of allowing a unitary family to be dissolved by a
third party judicially without their consent.
Dissent. Justice William Brennan (J. Brennan) dissents, viewing the majority's insistence
on the rights of the State to preserve the unitary family as singularly incongruent to the
current case. There is little or no resemblance to a traditional unitary family in the
relationships carried on by Carole D., Gerald D., and Michael H.. J. Brennan further
asserts that such state of affairs is more common than the majority wishes to admit.
Discussion. The major difference between the majority and dissent is whether the United
States Constitution (Constitution) is one of predefined, static principles, or an organic and
changing document. J. Scalia's analysis rests on the traditional interest of the State in
preserving the unitary family and discouraging adultery (if one wishes to have a paternal
266 Michael H. v. Gerald D.
relationship with ones offspring, do not impregnate a married woman whose husband
may accept the child as his own). Whereas J. Brennan's approach is one based in the
reality of the situation (if the traditional unitary family clearly means so little to Carole
D., why is the preservation of the traditional unitary family advanced as an argument
benefiting her?). The line of argument in J. Brennan's dissent requires that behavior such
as Carole D. and Michael H's not be a societal outlier.
267 Moore v. City of East Cleveland, Ohio
Moore v. City of East Cleveland, Ohio
Citation. 431 U.S. 494 (1977).
Brief Fact Summary. The Petitioner, Mrs. Inez Moore Moore (Petitioner), was
convicted of a criminal offense under an East Cleveland housing ordinance for having
one of her grandsons living in her house.
Synopsis of Rule of Law. The State must advance a compelling interest to infringe upon
the choice of relatives of a close degree of kinship to live together.
Facts. East Cleveland's housing ordinances restrict occupancy of certain dwellings to
single family units. The ordinance in question, however, recognizes only a few categories
of related individuals as a "single family." At the time of the complaint the Petitioner,
lived in East Cleveland with her son and two of her grandsons, who were cousins, rather
than brothers. Her living situation did not match one of the statutory definitions of single
family. She was charged and sentenced to pay a $25 fine and spend 5 days in jail.
Issue. May the City restrict its definition of single family in such a manner as to remove
certain combinations of close blood relations in the same house from that definition?
Held. No. Appeals Court ruling reversed and remanded.
1 • Justice Lewis Powell (J. Powell) notes that municipalities generally have
a broad ability to enforce single-family housing ordinances against groups
of individuals living together where there is no relation by blood,
adoption, or marriage.
2 • However, the tradition of having family members live with others in
their extended family is long and representative of the basic values
underlying our society. As such, the decision to move in with extended
family or move extended family in with ones nuclear family may be
regarded as a fundamental right. J. Powell argues the State has no
compelling interest in restricting the definition of a single family in such a
manner as to exclude combinations of close blood relations.
Dissent. Justice Potter Stewart (J. Stewart) argues that the line of cases restricting
definitions of single families focuses not so much on blood relation, but rather the ability
to have children and to raise them in the manner one deems proper. The City ordinance
does not affect the Petitioner's right to do any of these.
Discussion. The majority and dissent differ largely in their conception of what the
fundamental right involved in the case is. The majority holds it to be family associations
broadly. The dissent argues that the family associations are merely emanations from more
basic rights, reproductive autonomy and child-rearing.
268 Meyer v. Nebraska
Meyer v. Nebraska
Citation. 262 U.S. 390 (1923).
Brief Fact Summary. The Petitioner, Meyer (Petitioner), was tried and convicted of
teaching reading in German to a 10-year-old student in violation of state laws regulating
the teaching of foreign languages.
Synopsis of Rule of Law. The right of parental control also extends to the type of
education children receive.
Facts. The Respondent, the state of Nebraska (Respondent), made it illegal to teach any
class in a non-English language, to teach any non-English language to a pupil prior to the
ninth grade and set fines and jail time for any individual violating the statute.
Issue. May the State of Nebraska outlaw foreign-language instruction?
Held. No. Justice James McReynolds (J. McReynolds) notes that "mere knowledge of the
German language cannot be reasonably regarded as harmful." As such, it is difficult to
ascertain why the Respondent should so influence the educational opportunities of the
children of the State and interfere with parental choice of educational experiences.
Discussion. J. McReynolds notes that the justification for the statute was most likely anti-
German sentiment following the First World War. He also suggests that the statute may
not be unconstitutional in wartime, when the State's interest in fostering a homogeneous
population with "American ideals," is far greater than during peacetime. Meyer is clearly
indicative of jurisprudence prior to the development of the fundamental right/compelling
state interest/substantial relation analysis of the current Supreme Court of the United
States (Supreme Court).
269 Troxel v. Granville
Troxel v. Granville
Citation. 120 S. Ct. 2054 (2000).
Brief Fact Summary. The Petitioners, the grandparents of Isabelle Troxel and Natalie
Troxel (Petitioners), sued their mother, the Respondent, Tommie Granville (Respondent),
for visitation rights, under a Washington statute that allows any individual to sue for
visitation rights.
Synopsis of Rule of Law. The interest of parents in the "care, custody, and control of
their children" is a fundamental right that the State may not abridge without a compelling
interest.
Facts. The Respondent and Brad Troxel (Mr. Troxel) had a relationship that lasted some
years and produced two daughters, but the couple never married. Two years after they
separated, Mr. Troxel committed suicide. In the time between their separation and his
suicide, Mr. Troxel often brought Isabelle Troxel and Natalie Troxel to his parents'
house. After Mr. Troxel's suicide, his parents wanted to continue to have a relationship
with their granddaughters. However, the Respondent's opinion of appropriate visitation
times and durations differed from the grandparents'. So, under the Washington statute
authorizing suit for visitation rights by any party, the grandparents asked for a judicial
determination in the best interest of the children.
Issue. Does the Washington statute interfere unnecessarily with parental control over the
raising of children?
Held. Yes. Supreme Court of Washington ruling affirmed.
1 • Justice Sandra Day O'Connor (J. O'Connor) reiterated that the raising of
a child is one of the most fundamental of all protected liberties. Because of
this, the state must prove the existence of a compelling interest for the
statute.
2 • J. O'Connor points out two important issues: (1) the statute does not
require the court to afford any special weight to the parent's decisions
regarding the child and (2) there is no determination that the parent is an
unfit guardian. This latter point is most important, as there is a
presumption that fit parents act in the best interests of their children.
Because of this, when the trial court reviewed the suit it gave no special
consideration to the Respondent's concept of the best interest of her
children.
Dissent.
1 • Justice John Paul Stevens (J. Stevens) believes the case should have been
denied certiorari, as the Washington Supreme Court struck down the
statute itself.
270 Troxel v. Granville
1 • Justice Antonin Scalia (J. Scalia) argues that the Court should not be
deciding questions of family law, but rather the legislature.
2 • Justice Anthony Kennedy (J. Kennedy) believes that the best interest of
the child standard required by the statute provides the necessary protection
to the parent's constitutional rights.
Concurrence.
1 • Justice David Souter (J. Souter) argues that the statute is facially
unconstitutional as it too broadly allows anyone to sue for visitation rights
at any time.
2 • Justice Clarence Thomas (J. Thomas) states that he would affirm the
lower court ruling on the basis that Washington has no compelling interest
in second-guessing a fit parent's decision on visitation of third parties.
Discussion. The plurality does not address the facial constitutionality of the statute, but
that the statute is unconstitutional when applied to the situation of the Respondent and her
children. The greatest difference between the plurality and the concurrences lies in
whether or not the facial issue is reached.
271 Skinner v. Oklahoma
Skinner v. Oklahoma
Citation. 316 U.S. 535 (1942).
Brief Fact Summary. The Petitioner, Skinner (Petitioner), was sentenced to involuntary
sterilization under Oklahoma's Habitual Criminal Sterilization Act (the Act) and now
alleges that the Act deprives him of equal protection under the laws.
Synopsis of Rule of Law. The right to have offspring is a fundamental right, requiring a
compelling state interest to interfere with it.
Facts. Oklahoma defined a "habitual criminal" as a person who, "having been convicted
two or more times for crimes 'amounting to felonies involving moral turpitude' either in
Oklahoma or another State, is thereafter convicted of such a felony in Oklahoma and is
sentenced to a term of imprisonment in a Oklahoma penal institution." Such habitual
criminals could be subject to forced sterilization. The Petitioner had been twice arrested
for theft offenses before being arrested and confined for armed robbery. During his third
incarceration, the Act was passed and proceedings were instituted against him.
Issue. May the State sterilize an individual against his will for being convicted of three
felonies involving moral turpitude?
Held. No. Supreme Court of Oklahoma ruling reversed.
1 • Justice William Douglas (J. Douglas) notes that sterilization of habitual
offenders in no way guarantees that new offenders will not be born.
Furthermore, there is no guarantee that habitual offenders would spawn
offenders themselves.
2 • J. Douglas cannot justify the distinction between larceny (involving
moral turpitude) and embezzlement (not involving moral turpitude) in the
eyes of the statute. This is clear discrimination in J. Douglas's view. In
terms of fines and imprisonment the crimes are identical to the State. Only
when it comes to sterilization do the crimes differ. As such, equal
protection is violated.
Concurrence. Chief Justice Harlan Stone (J. Stone) concurs in the judgment, but rests his
decision on due process grounds, arguing that the invasion of personal liberty is too great.
Discussion. Skinner represents the Supreme Court of the United States' growing
awareness of the right to reproductive autonomy. Unlike later cases that focus on due
process and a right to privacy, the majority in Skinner holds that sterilization in the
present situation violates equal protection principles.
272 Griswold v. Connecticut
Griswold v. Connecticut 381 U.S. 479 (1965).

Brief Fact Summary. The Appellants, Griswold and others (Appellants), was arrested
for providing information, instructions, and medical advice to married persons as a means
to prevent conception.
Synopsis of Rule of Law. Intimate marital relations lie within a zone of privacy into
which the government may not intrude.
Facts. Connecticut law criminalized the use of chemical and mechanical contraception,
as well as the counseling and aiding the use of such contraception. The Petitioner was the
Executive Director of the Planned Parenthood League of Connecticut. The Petitioner was
arrested after providing information and instructions on birth control methods to married
people.
Issue. May the government ban all use of contraceptives?
Held. No. Appeals Court ruling reversed.
1 • Justice William Douglas (J. Douglas) describes the "penumbras[] formed
by emanations from specific guarantees of the Bill of Rights." In
particular, he describes the fact that the State cannot "contract the
spectrum of available knowledge" consistent with the First Amendment of
the United States Constitution (Constitution). He also describes the rights
to "privacy and repose" suggested by many of the Amendments in the Bill
of Rights.
2 • J. Douglas suggests that the marital relationship lies at the center of such
a zone of privacy. As the law prohibits the use of contraceptives, rather
than their manufacture or sale, the law is aimed at the core of the marital
relationship. He argues that this is too broad a sweep to be a constitutional
exercise of state authority.
Dissent. Justices Hugo Black (J. Black) and Potter Stewart (J. Stewart) dissented. They
admit they find the Connecticut statute offensive, but believe that unless there is a
specific constitutional provision otherwise, the remedy for such legislation is through the
political branches, not the judiciary.
Concurrence.
1 • Justice John Marshall Harlan (J. Marshall) argues that the statute should
be overturned on Due Process grounds, as the enactment violates "basic
values 'implicit in the concept of ordered liberty.'"
273 Griswold v. Connecticut
1 • Justice Byron White (J. White) concurs on due process grounds,
believing that the purpose of the statute is to enforce policies disfavoring
illicit sexual contact. He notes that denying married couples the right to
contraception in no way strengthens that policy.
2 • Justice Arthur Goldberg (J. Goldberg) believes that the Ninth
Amendment of the United States Constitution (Constitution) guarantees
that the marital relation is a right retained by the people, and as such,
Connecticut does not have the constitutional authority to abridge that
relationship.
Discussion. The opinion of the Court in Griswold is unusual in that it relies on inferred
rights in the Constitution. Furthermore, it is difficult to distinguish how the Supreme
Court's opinion is any more "correct" than the concurring opinions offered.
274 Eisenstadt v. Baird
Eisenstadt v. Baird
Citation. 405 U.S. 438 (1972).
Brief Fact Summary. The Appellee, Baird (Appellee), was arrested for lecturing on
contraception to a group of University students and distributing contraceptive foam to a
student after the lecture.
Synopsis of Rule of Law. The State may not discriminate between married and
unmarried individuals in prohibiting the distribution of contraception.
Facts. Massachusetts law created three classes of people receiving contraceptive devices
and drugs: (1) married persons could receive contraceptives to prevent pregnancy, but
only from doctors or druggists on prescription; (2) single people may not receive
contraceptives from anyone to prevent pregnancy and (3) anyone may receive
contraceptives from anyone to prevent the spread of disease.
Issue. May the state discriminate between married and unmarried couples in prohibiting
birth control methods?
1 • Justice William Brennan (J. Brennan) notes that "if the right to privacy
means anything, it means the right of the individual, married or single, to
be free from unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to bear or beget a
child."
Dissent. Chief Justice William Burger (J. Berger) argues that there is nothing in the
Fourteenth Amendment of the United States Constitution (Constitution) that suggests
birth control must be made available on the open market.
Discussion. A right to privacy is again recognized in Eisenstadt. Here, the right to
contraception is extended to unmarried individuals, as well.
275 Roe v. Wade
Roe v. Wade
Citation. 410 U.S. 113 (1973).
Brief Fact Summary. The Petitioner, Jane Roe (Petitioner), was pregnant and challenged
the Texas statute prohibiting her from acquiring an abortion.
Synopsis of Rule of Law. The State has a limited ability to affect a woman's ability to
procure an abortion.
Facts. The Petitioner was pregnant with an unwanted pregnancy and brought suit against
the State of Texas for prohibiting medically licensed professionals from performing
abortions.
Issue. To what extent may the State regulate a woman's ability to procure an abortion?
Held. It varies, depending on the trimester during which the operation occurred and
whether or not the woman's life and health is taken into account.
1 • Justice William Brennan (J. Brennan) produced a continuum. He begins
by noting that a statute, which only excepts from criminality those
abortions designed to save the mother's life is unconstitutional.
2 • Prior to the end of the first trimester, only the pregnant woman and her
physician may make decisions regarding the termination of a pregnancy.
3 • During the second trimester, the state may regulate abortion in manners
reasonably related to maternal health.
4 • During the third trimester, the state may even prohibit all abortion
procedures, except where the life or health of the mother is at risk.
Dissent. Justice William Rehnquist (J. Rehnquist) dissents, largely arguing that the three-
trimester approach offered by the majority speaks more of judicial legislation than
constitutional analysis.
Discussion. The right to privacy is extended further again. Roe is the central case
involving a woman's right to terminate a pregnancy. Roe's three-trimester approach is no
longer used by federal courts in analyzing abortion legislation, but rather a more fluid
approach outlined in Planned Parenthood v. Casey, 505 U.S. 833 (1992).
276 Planned Parenthood v. Casey
Planned Parenthood v. Casey
Citation. 505 U.S. 833 (1992).
Brief Fact Summary. Pennsylvania amended its Abortion Control Act (the Act) in 1988-
89, largely believing Roe v. Wade, 410 U.S. 113 (1973) would be overturned.
Synopsis of Rule of Law. The central holding of Roe is still good law.
Facts. Pennsylvania amended the Act to require, among other things, that a woman give
informed consent at least 24 hours before the procedure, that a minor have at least one
parent give consent (although there is a judicial bypass option for minors) and that a
married woman must sign a statement saying she has notified her husband of the
procedure.
Issue. Does the amended Act satisfy the federal courts' post-Roe conception of abortion
rights?
Held. No. Appeals Court ruling overturned.
1 • Justices Sandra Day O'Connor (J. O'Connor), Anthony Kennedy (J.
Kennedy), and David Souter (J. Souter) wrote for the Supreme Court of
the United States (Supreme Court), noting that "[a]t the heart of liberty is
the right to define one's own concept of existence, of meaning, of the
universe, and of the mystery of human life. Beliefs about these matters
could not define the attributes of personhood were they formed under
compulsion of the State."
2 • J. O'Connor, J. Kennedy, and J. Souter note that any reservations the
Suprem Court has in reaffirming Roe are overcome by the force of stare
decisis. In particular, "[n]o evolution of legal principle has left Roe's
central doctrinal footings weaker than they were in 1973. No development
of constitutional law since the case was decided has implicitly or explicitly
left Roe behind as a mere survivor of obsolete constitutional thinking."
3 • "An undue burden exists, and therefore a provision of law is invalid, if
its purpose or effect is to place a substantial obstacle in the path of a
woman seeking an abortion before the fetus attains viability."
4 • Because the State has an interest in potential life throughout pregnancy,
the State may take measures to ensure that the woman's choice is
informed, as long as those measures do note unduly overburden a woman's
right. Unnecessary health regulations that present a substantial obstacle to
a woman seeking an abortion impose an undue burden on the right.
5 • A State may not prohibit any woman from making the ultimate decision
to terminate her pregnancy before viability.
Dissent.
1 • Chief Justice William Rehnquist (J. Rehnquist) states that he believes
Roe was improperly decided and tradition requires the Supreme Court to
overturn the holding.
2 • Justice Antonin Scalia (J. Scalia) believes Roe was improperly decided,
as abortion should be debated at the political level, not decided by the
courts.
Concurrence. Justice Harry Blackmun (J. Blackmun) writes in large part to display his
worry that Roe will be overturned when he steps down from the Court.
Discussion. The majority takes down the rigid trimester outline of Roe and focuses more
clearly on the issue of viability. The concurrence and dissents discuss openly their hopes
or fears that a change in the Supreme Court's composition will open the door to overturn
Roe.
278 Stenberg v. Carhart
Stenberg v. Carhart
Citation. 120 S. Ct. 2597 (2000).
Brief Fact Summary. The Respondent, Carhart (Respondent), asks for an injunction
forbidding the enforcement of Nebraska's statute banning so-called "partial birth
abortions."
Synopsis of Rule of Law. The State cannot ban abortion procedures categorically
without exceptions for the mother's health.
Facts. The Respondent is a Nebraska physician who performs abortions in a clinical
setting. During the second trimester of pregnancy, the safest methods of abortion involve
removal of at least some fetal tissue during the procedure and in some cases
disarticulation, dismemberment, or collapse of fetal tissue to facilitate evacuation from
the uterus. Nebraska criminalized the performance of any "partial birth" procedure in an
abortion.
Issue. Does the Nebraska statute unduly burden a woman's reproductive rights?
1 • Justice Steven Breyer (J. Breyer) notes that a State may promote, but not
endanger a woman's health when it regulates the methods of abortion.
There is no exception in the Nebraska statute for the mother's health where
partial birth procedures are the safest method of abortion.
2 • Nebraska has the burden of proving that a partial birth procedure will
never be the safest alternative for a woman rightfully seeking an abortion.
It has not made such a showing.
Dissent.
1 • Justice Antonin Scalia (J. Scalia) reiterates his belief that the Supreme
Court of the United States' (Supreme Court) abortion jurisprudence is
judicial legislation.
2 • Justice Anthony Kennedy (J. Kennedy) suggests that the courts are ill-
prepared to distinguish between various techniques for abortions.
3 • Justice Clarence Thomas (J. Thomas) believes the entire line of
jurisprudence since Roe v. Wade, 410 U.S. 113 (1973), is misguided
judicial activism.
Concurrence.
279 Stenberg v. Carhart
1 • Justice Sandra Day O'Connor (J. O'Connor) believes the statute is
unconstitutional for two reasons: (1) there is no maternal health exception,
and (2) its ban of the most common second trimester abortion technique
imposes an undue burden on a woman's right to choose.
2 • Justice Ruth Bader Ginsburg (J. Ginsburg) quotes Seventh Circuit Court
of Appeals Chief Judge Posner that the real target of the statutes in
question is not a procedure, but rather the rights afforded by Roe, et. al.
Discussion. The holding in Carhart is not an outlier. The Supreme Court is clear that
there must always be a maternal health exception to any regulation of a woman's right to
have an abortion. Again, it is most likely the changing composition of the Supreme Court
motivated pro life advocates to believe Roe might be overturned.
280 Maher v. Roe
Maher v. Roe
Citation. 432 U.S. 464 (1977).
Brief Fact Summary. Connecticut Welfare Department limits state Medicaid benefits
for first trimester abortions to those that are medically necessary.
Synopsis of Rule of Law. The Supreme Court of the United States (Supreme Court)
should not decide legislative policy.
Facts. The State Welfare Department limits funding for first trimester abortions to those
abortions that are "medically necessary." Indigent women brought suit, claiming that the
statute denies them their constitutional right to an abortion.
Issue. May Connecticut regulate funding for abortions in a manner that discriminates
against the individuals having non-therapeutic abortions?
1 • Justice Lewis Powell (J. Powell) notes that there is no "constitutional
right to an abortion." Rather there is a constitutional right to have the
government not unreasonably interfere with a woman's decision to have an
abortion.
2 • Connecticut may make childbirth a more attractive option for the
indigent by paying for a pregnancy taken to term, but the state has put no
obstacle in the way of an indigent woman procuring an abortion. The
Supreme Court is in no position to review the State's policy choice.
Dissent. Justice William Brennan (J. Brennan) believes that the State is forcing women to
carry children to term and thus is making reproductive decisions for the women.
Discussion. Understanding the majority opinion, one must understand that indigent
woman have no funding for an abortion whether or not the State denies funding. As such,
the State is not putting obstacles in the way of indigent women wanting abortion services.
Planned Parenthood v. Casey
Citation. 505 U.S. 833 (1992).
Brief Fact Summary. The amended Pennsylvania Abortion Control Act (the Act)
included provisions that a married woman must inform her husband of her desire to
procure an abortion except in case of medical emergency.
Synopsis of Rule of Law. Spousal notification presents an unconstitutionally substantial
obstacle to a woman's right to choose to have an abortion.
Facts. Pennsylvania amended the Act to require, among other things, that a woman give
informed consent at least 24 hours before the procedure, that a minor have at least one
parent give consent (although there is a judicial bypass option for minors), and that a
married woman must sign a statement saying she has notified her husband of the
procedure.
Issue. Does the spousal notification requirement present a substantial obstacle to a
woman procuring an abortion?
1 • Justice Sandra Day O'Connor (J. O'Connor) argues that in well-
functioning marriages, spouses would communicate on issues as great as
having an abortion. However, in a dysfunctional marriage, there is a
higher probability that a wife would not want to disclose the unwanted
pregnancy to the husband. As such, the statute presents a substantial
obstacle to a woman's right to choose.
2 • J. O'Connor also suggests that the statute represents a view of marriage
reflecting the common-law view of women's status in marriage, which is
repugnant to our current view of marriage.
Dissent. Chief Justice William Rehnquist (J. Rehnquist) argues that the statute should not
be unconstitutional simply because the statute will be unnecessary in some cases or even
counterproductive in some others. The Pennsylvania legislature was in a position to
weigh the costs and benefits of the statute.
Discussion. The basic rationale here is that the State cannot put substantial obstacles
between a woman and the abortion decision. It can counsel to take a child to term, but it
may not substantively hinder access to an abortion.
282 Bellotti v. Baird
Concurrence. Justice John Paul Stevens (J. Stevens) concurs with the majority opinion,
but writes separately to voice concern that there are not concrete guidelines for the judges
standing over a request for consent for an abortion.
Bellotti v. Baird
Citation. 443 U.S. 622 (1979).
Brief Fact Summary. A Massachusetts law required an unmarried minor woman to get
consent from both her parents before procuring an abortion. If unable to do so, a superior
court judge may issue a consent order.
Synopsis of Rule of Law. A minor's right to an abortion may be conditioned on parental
consent, as long as there is an alternative procedure provided by the State.
Facts. Massachusetts required unmarried, minor women to obtain parental consent from
both parents before allowing her to acquire an abortion. In the event that she was
unwilling or unable to obtain such consent, she could petition in superior court for a
determination that she is mature enough to make this decision, or even if she is not, the
abortion is in her best interest.
Issue. May a State condition a minor woman's right to an abortion on parental consent?
1 • Justice Lewis Powell (J. Powell) argued that the rights of a woman to
have an abortion must be balanced with the ability of parents to make
decisions for their minor offspring.
2 • The Supreme Court of the United States (Supreme Court) had previously
held that an absolute parental veto over a minor's decision to terminate her
pregnancy was unconstitutional. In the statute at bar, the State provides a
"safety valve" of allowing a judicial determination instead of parental
consent. Because the statute balances parental interest in raising their
children with the unique situation of a pregnant minor seeking an abortion,
the statute is constitutional.
Discussion. The main point of Bellotti is the balancing of the interests of the minor
woman in terminating the pregnancy and the parents in having the ability to raise their
offspring.
283 Cruzan v. Director, Missouri Dept. of Health
Cruzan v. Director, Missouri Dept. of Health
Citation. 497 U.S. 261 (1990).
Brief Fact Summary. Nancy Cruzan's (Ms. Cruzan) parents sought to withhold medical
treatment from their vegetative daughter, but were denied because of insufficient
evidence of Nancy's intent. Ms. Cruzan's parents now bring suit on her behalf, alleging
she has a liberty interest in withdrawal of treatment.
Synopsis of Rule of Law. States are given wide latitude in determining how they give
rights to patient surrogates.
Facts. Missouri denied the withdrawal of treatment request because Ms. Cruzan's parents
could not establish Ms. Cruzan's wishes regarding such withdrawal by clear and
convincing evidence. Ms. Cruzan had a discussion with a friend who testified in court
that she said she would not want to be on life support, but this was the only evidence of
her personal wishes.
Issue. Does Missouri have a legitimate state interest in tempering the liberty interests of
incompetent patients?
1 • Chief Justice William Rehnquist (J. Rehnquist) notes that unwanted
medical treatment is considered a battery at common law. Hence, it is
clear that there must be a liberty interest to refuse medical treatment.
However, the treatment must be unwanted by the patient.
2 • Missouri is free to choose whether or not they will accept a surrogate for
an incompetent's medical decisions, but they are free to establish the
standard by which they do so. That is a legislative, not judicial choice.
Dissent. Justice William Brennan (J. Brennan) dissents, arguing that the State interest
cannot outweigh Ms. Cruzan's liberty interest in having treatment withheld.
Concurrence.
1 • Justice Sandra Day O'Connor (J. O'Connor) concurs, emphasizing that
the Supreme Court of the United States (Supreme Court) did not have to
decide whether a State must abide by the decisions of a medical surrogate.
2 • Justice Antonin Scalia (J. Scalis) concurs, but writes separately to state
his opinion that the federal courts have no place making substantive
decisions in this area, that this police power has always been afforded to
the States.
Discussion. While the Supreme Court decides there is a liberty interest in requesting to
withdraw treatment, the Ms. Cruzan's family is not afforded the remedy they hoped for,
284 Cruzan v. Director, Missouri Dept. of Health
as the Supreme Court also ruled that Missouri has a state interest in determining how that
liberty interest is to be applied in the case of an incompetent.
285 Washington v. Glucksberg
Washington v. Glucksberg
Citation. 521 U.S. 702 (1997).
Brief Fact Summary. The Respondents, Glucksberg and other physicians who treat
terminally ill patients (Respondents) seek a declaration that a Washington law prohibiting
assisted suicide is unconstitutional.
Synopsis of Rule of Law. Assisted suicide is not a liberty interest protected by the
Facts. Physicians treating terminally ill patients are seeking a determination that the
Washington state law prohibiting assisted suicide is unconstitutional.
Issue. Is there a liberty interest in allowing patients the right to assisted suicide?
Held. No. Appeals Court ruling reversed.
1 • Chief Justice William Rehnquist (J. Rehnquist) notes that suicide is
criminalized in almost every State and every Western democracy. To hold
for the Respondents would strike down hundreds of years of legal
tradition.
2 • The Supreme Court of the United States (Supreme Court) had already
established that there is a liberty interest in withholding unwanted medical
treatment, even life support. However, in terms of suicide, there are
several State interests against defining such a liberty interest: preserving
human life, protecting the vulnerable and fear that this may start down the
path toward involuntary euthanasia. Given that the State of Washington
has compelling state interests in preventing assisted suicide, the means
chosen are substantially related to that end.
Concurrence.
1 • Justice Sandra Day O'Connor (J. O'Connor) concurs, but does not reach
the narrow question of whether a mentally competent patient may ask for
assistance in taking his own life. This is because she finds no liberty
interest in suicide in general.
2 • Justice John Paul Stevens (J. Stevens) concurs noting that although the
Washington statute is not facially invalid, it does not foreclose the
possibility that some applications of the statute might well be invalid.
3 • Justice Steven Breyer (J. Breyer) concurs with the decision, but wishes
that the formulation of the right was not "the right to commit suicide with
another's assistance," but a formulation similar to "the right to die with
dignity."
286 Washington v. Glucksberg
Discussion. The Supreme Court does not decide whether it is constitutional for a law
permitting assisted suicide to exist; only that it is constitutional to pass a law prohibiting
assisted suicide, as there is no constitutional guarantee to assisted suicide.
287 Lawrence v. Texas
Lawrence v. Texas
Citation. 595 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003)
Brief Fact Summary. The Petitioners, John Geddes Lawrence ("Mr. Lawrence") and
Tyrone Garner ("Mr. Garner") (collectively referred to as the "Petitioners"), were two
adults. The Petitioners were arrested and prosecuted under a Texas state law for engaging
in a consensual sexual act.
Synopsis of Rule of Law. A statute criminalizing two consenting adults of the same sex
for engaging in certain intimate contact, is violative of the Fourteenth Amendment of the
United States Constitution (the "Constitution").
Facts. The police arrived at and entered Mr. Lawrence's home in response to a weapons
disturbance. The constitutionality of the entry was not in dispute. When the police
entered the home, they found the Petitioners, two adults, engaging in a consensual sexual
act. The Petitioners were arrested and charged with violating Tex. Penal Code Ann. §
21.06(a), which provides "[a] person commits an offense if he engages in deviate sexual
intercourse with another individual of the same sex." The statute defines "[d]eviate sexual
intercourse" as follows: "(A) any contact between any part of the genitals of one person
and the mouth or anus of another person; or "(B) the penetration of the genitals or the
anus of another person with an object." § 21.01(1).
Issue.
1 • Is a statute that makes it illegal for two persons of the same sex to engage in
certain intimate contact valid?
2 • Are the Petitioners free as adults to engage in the private conduct of
consensual sex in the exercise of their liberty under the Due Process Clause of
the Fourteenth Amendment to the Constitution?
Held.
1 • No, the statute is violative of the Due Process Clause of the Fourteenth
Amendment of the Constitution. The Texas statute "furthers no legitimate
state interest which can justify its intrusion into the personal and private life of
the individual."
2 • Yes. The Supreme Court of the United States ("Supreme Court") initially
revisited its decision in [Bowers v. Hardwick], in which a Georgia statute
criminalizing certain sexual conduct was upheld. Justice Anthony Kennedy
("J. Kennedy"), writing for the majority, began by criticizing the Supreme
Court's framing of the issue in [Bowers], because it overlooked the extent of
the liberty interest at stake. The Supreme Court in [Bowers] framed the issue
as follows: "whether the Federal Constitution confers a fundamental right
1 upon homosexuals to engage in sodomy and hence invalidates the laws of the
many States that still make such conduct illegal and have done so for a very
long time." J. Kennedy observed, the statutes at issue in these cases "seek to
control a personal relationship that, whether or not entitled to formal
recognition in the law, is within the liberty of persons to choose without being
punished as criminals." Additionally, "[i]t suffices for [the majority] to
acknowledge that adults may choose to enter upon this relationship in the
confines of their homes and their own private lives and still retain their dignity
as free persons." No showing has been made that the United States
Government has a legitimate or urgent interest in curbing this type of personal
choice. J. Kennedy adopted Justice John Paul Steven's ("J. Stevens) dissenting
opinion from [Bowers]. It read:
[o]ur prior cases make two propositions abundantly clear. First, the fact that the
governing majority in a State has traditionally viewed a particular practice as
immoral is not a sufficient reason for upholding a law prohibiting the practice;
neither history nor tradition could save a law prohibiting miscegenation from
constitutional attack. Second, individual decisions by married persons, concerning
the intimacies of their physical relationship, even when not intended to produce
offspring, are a form of 'liberty' protected by the Due Process Clause of the
Fourteenth Amendment. Moreover, this protection extends to intimate choices by
unmarried as well as married persons.
Dissent.
1 • Justices Antonin Scalia ("J. Scalia), William Rehnquist ("J. Rehnquist") and
Clarence Thomas (J. Thomas) dissented. The dissenting justices criticized the
majority's application of the doctrine of stare decisis. Specifically, "[t]oday's
approach to stare decisis invites us to overrule an erroneously decided
precedent (including an "intensely divisive" decision) if: (1) its foundations
have been "eroded" by subsequent decisions; (2) it has been subject to
"substantial and continuing" criticism; and (3) it has not induced "individual
or societal reliance" that counsels against overturning." The dissenting justices
then argue [Roe] satisfies this three-prong test.
2 • J. Thomas also drafted his own dissent in addition to joining J. Scalia's. J.
Thomas described the law before the court as "uncommonly silly" and
recommended that the Texas legislature repeal it.
Concurrence.
1 • Justice Sandra Day O'Connor ("J. O'Connor") concurred in the judgment.
However, instead of basing her opinion on the Fourteenth Amendment of the
Constitution's Due Process Clause, she does so on the Equal Protection Clause
in the Fourteenth Amendment of the Constitution. J. Kennedy, writing for the
majority refused to base his decision on the Equal Protection Clause. J.
1 O'Connor stressed the "Texas statute makes homosexuals unequal in the eyes
of the law by making particular conduct--and only that conduct--subject to
criminal sanction." Additionally, "Texas' sodomy law brands all homosexuals
as criminals, thereby making it more difficult for homosexuals to be treated in
the same manner as everyone else. " Further, "[m]oral disapproval of this
group, like a bare desire to harm the group, is an interest that is insufficient to
satisfy rational basis review under the Equal Protection Clause."
Discussion. By this decision, the Supreme Court overruled its prior controversial
decision in [Bowers v. Hardwick]. The majority stated: "[i]n the United States, criticism
of [Bowers] has been substantial and continuing, disapproving of its reasoning in all
respects , not just as to its historical assumptions."
1 • J. Kennedy also addressed the doctrine of stare decisis and stated: "[t]he
doctrine of stare decisis is essential to the respect accorded to the judgments
of the Court and to the stability of the law. It is not, however, an inexorable
command."
290 Whalen v. Roe
Whalen v. Roe
Citation. 429 U.S. 589 (1977).
Brief Fact Summary. The State of New York maintained a centralized computer
database of the names and addresses of all persons who have obtained, by prescription, a
drug for which there is both a legal and an illegal market.
Synopsis of Rule of Law. The government may maintain detailed lists of personal
information for administrative convenience.
Facts. The State of New York was collecting personal information regarding individuals
prescribed drugs for which there is a legal and an illegal market. The statute also
criminalized unauthorized release of any such information.
Issue. May the government maintain lists of personal health information without
violating a zone of privacy?
Held. Yes. Appeals Court ruling reverse.
1 • Justice John Paul Stevens (J. Stevens) argued that there are two different
interests implicated by zones of privacy. The first is the right to avoid
disclosing personal matters and the second is the right to independence in
making certain decisions.
2 • The statute protects against public disclosure and some degree of
disclosure is already inherent in the current prescription drug system. The
Respondent has failed to establish how the statute invades any right or
liberty.
Discussion. The Supreme Court of the United States (Supreme Court) does not argue
there is no invasion of privacy here, only that there is no constitutionally impermissible
invasion of privacy. J. Stevens acknowledges the fear of accidental disclosure, but he also
acknowledges that there is a statutory penalty for unauthorized disclosure.
291 Saenz v. Roe
Saenz v. Roe
Citation. 526 U.S. 489 (1999).
Brief Fact Summary. A California statute required families to live in California for
twelve months before becoming eligible for full welfare benefits. In the interim, they
were limited to the amount payable by the State of the family's prior residence.
Synopsis of Rule of Law. States may not discriminate against non-residents in such a
manner that denies them the privileges and immunities enjoyed by the citizens of that
State.
Facts. A California statute required families to live in California for twelve months
before becoming eligible for full welfare benefits. In the interim, they were limited to the
amount payable by the State of the family's prior residence. For example, a family of two
moving from Arizona would be eligible for only $275/month, where a California resident
would be eligible for $456/month.
Issue. May a State discriminate against non-citizens who travel to the State with regard to
current residents?
Held. No. Court of Appeals ruling affirmed.
1 • Justice John Paul Stevens (J. Stevens) notes that the Privileges and
Immunities Clause of the United States Constitution (Constitution)
guarantees to citizens of other States the ability to be treated in the same
manner as a citizen of a State to which he they are traveling. This should
be the same whether they are transiently in the new State or a traveling to
settle in the new state.
2 • California did not advance a discriminatory intent to the law, but rather
noted it would save the State almost $11 million annually. J. Stevens noted
that saving is an important issue, but that the discriminatory means is
inappropriate to the ends advanced.
Dissent. Chief Justice William Rehnquist (J. Rehnquist) disapproves of the use of the
Privileges and Immunities Clause of the Constitution and the insistence on viewing the
activities as part of "travel." J. Rehnquist notes that when a citizen settles in another
State, he is no longer a traveler.
Discussion. The travel argument by J. Rehnquist is suspect. If he agrees that one is
entitled to all privileges and immunities when traveling, why should one lose these when
one becomes a citizen after traveling has ended.
292 Harper v. Virginia State Board of Elections
Harper v. Virginia State Board of Elections
Citation. 383 U.S. 663 (1966).
Brief Fact Summary. Virginia residents brought suit against the State Board of
Elections, alleging that the poll tax violates the United States Constitution (Constitution).
Synopsis of Rule of Law. A State poll tax violates the Equal Protection Clause of the
Fourteenth Amendment of the Constitution.
Facts. Virginia levied a poll tax not exceeding $1.50 on every resident of the State 21
years of age or older. Residents challenged the State tax under the Fourteenth
Issue. Does a State poll tax violate the Equal Protection Clause of the Fourteenth
Held. Yes. Reversed and remanded. Justice William Douglas (J. Douglas) notes that the
tax divides the eligible voters of the State into two classes: those who can afford the tax
and those who cannot. As such, it invidiously discriminates against those who cannot
afford the tax.
Discussion. Because voting is a fundamental right, classifications involving the right to
vote are closely scrutinized. In the present case, a classification based on wealth is clearly
inappropriate.
293 Kramer v. Union Free School District
Kramer v. Union Free School District
Citation. 395 U.S. 621 (1939).
Brief Fact Summary. The Petitioner, Kramer (Petitioner), was refused the right to vote
in school district elections, under a New York statute requiring property ownership in the
district or children attending district schools to vote in such elections.
Synopsis of Rule of Law. Statutes limiting the right to vote must be narrowly tailored to
achieve a compelling state interest.
Facts. New York Education Law requires the ownership of real property within a school
district or custody of children attending the district to be eligible to vote in school district
elections. The Petitioner is currently living with his mother within the school district. His
denial of voting rights was based solely on his lack of real property ownership or custody
of children. He brought suit, seeking to invalidate the statute as unconstitutional under the
Fourteenth Amendment of the United States Constitution (Constitution.
Issue. Is the New York statute narrowly tailored to serve a compelling government
interest?
Held. No. Appeals Court ruling reversed. Chief Justice Earl Warren (J. Warren) notes
that the State's legitimate interest seems to be restricting a voice in school matters to
those "directly affected." J. Warren notes that the system of exclusion excludes some
members that have a direct interest (individuals whose children are not yet school age)
and includes some with little interest (individuals with no children who just incidentally
own real property in the district). As such, it cannot be narrowly tailored.
Dissent. Justice Potter Stewart (J. Stewart) argues that the classification is valid, as the
State has "broad powers to determine the conditions under which the right to suffrage
may be exercised." As the classification in the present case is not of a suspect class, J.
Stewart argues that the classification is constitutional.
Discussion. The right to vote is a fundamental right. Notice that J. Warren does not say
that the State cannot discriminate as to who gets to vote in a school district election, only
that such discrimination must be tailored to the compelling interest sought to be
advanced.
294 Ball v. James
Ball v. James
Citation. 451 U.S. 355 (1981).
Brief Fact Summary. The Salt River Project Agricultural Improvement and Power
District (the District), stores and delivers untreated water to land owners in central
Arizona. The directors of the District are voted for by landowners in the district on a one-
acre, one-vote system of apportionment.
Synopsis of Rule of Law. In government entities of limited purpose, the State may create
voting schemes that are unconstitutional in elections for broader-based entities.
Facts. The District comprises 236,000 acres in central Arizona. As the District's primary
purpose is providing water to these 236,000 acres, the legislature vested the election of
the District directors in the hands of the landowners of the District. The landowners' votes
are prorated so that one acre of land owned entitled an individual to one vote.
Issue. Does the voting scheme of the District violate Equal Protection?
Held. No. Justice Potter Stewart (J. Stewart) notes that the narrow and special function of
the District justifies a departure from the popular-election requirement. There is a
reasonable relationship between the voting system and its governmental objectives.
Dissent. Justice Byron White (J. White) argues that the function of the District is not as
narrow as the majority would believe. J. White stresses that the District provides electric
power to several hundred thousand citizens and believes that the one-person one-vote
principle should apply.
Discussion. The majority and dissent differ only in the characterization of the function of
the District. They both agree that if the function is narrow enough, the State voting
scheme is acceptable, but if the function is broad, then one-person, one-vote should
apply.
295 Reynolds v. Sims
Reynolds v. Sims
Citation. 379 U.S. 870 (1964).
Brief Fact Summary. The Plaintiffs alleged that the last apportionment of the Alabama
legislature was based on the 1900 federal census and that the population growth in the
intervening six decades has now made representation discriminatory against areas with
fast-growing populations.
Synopsis of Rule of Law. In most instances, districts should be apportioned to allow
each voter to have one, undiluted vote.
Facts. The State of Alabama requires itself to redistrict its legislature every ten years.
However, the Plaintiffs allege that no such reapportionment has gone on in sixty years.
Under the current apportionment, only one quarter of the population lived in districts
represented by a majority of the Senate and House of Representatives.
Issue. Is the current system of apportionment denying to Alabama voters the equal
protection of laws?
Held. Yes.
1 • The Supreme Court of the United States (Supreme Court) notes that
"[l]egislators represent people, not trees or acres." If the State gives voters
in one part of the State much more weight in the vote of their legislators,
the right to vote of voters in underrepresented parts of the State has been
diluted.
2 • Although the federal legislature has a separate apportionment for its two
houses, there is no such need at the State level. Hence, apportionment of
state legislatures needs to reflect a one-person, one-vote policy.
Dissent. Justice John Marshall Harlan (J. Marshall) argues that States should be allowed
to determine the composition of their legislatures on their own and that this is a political
question, lying outside the reach of the Supreme Court.
Discussion. Reynolds v. Sims establishes the principle apportionment doctrine of the
United States Constitution (Constitution): one-person, one-vote. The Supreme Court gets
around the non-justiciability of political questions by framing the argument as an Equal
Protection issue: "To the extent that a citizen's right to vote is debased, he is that much
less a citizen."
296 Bush v. Gore
Bush v. Gore
Citation. 541 U.S. 267 (2000)
Brief Fact Summary. A dispute arose during the 2000 presidential election over certain
of Florida's ballot cards. The Florida Supreme Court ordered "that the intent of the voter
be discerned from such ballots."
Synopsis of Rule of Law. "The recount mechanisms implemented in response to the
decisions of the Florida Supreme Court do not satisfy the minimum requirement for non-
arbitrary treatment of voters necessary to secure the fundamental right." And, "[u]pon due
consideration of the difficulties identified to this point, it is obvious that the recount
cannot be conducted in compliance with the requirements of equal protection and due
process without substantial additional work."
Facts. A controversy arose during the 2000 Presidential election around certain ballot
cards. They were "designed to be perforated by a stylus but which, either through error or
deliberate omission have not been perforated with sufficient precision for a machine to
count them." In certain instances, "a piece of the card – a chad – is hanging, say by two
corners" and in other cases "there is no separation at all, just an indentation." The Florida
Supreme Court ordered "that the intent of the voter be discerned from such ballots." This
was done despite the fact that different counties used different standards to determine
what constituted a legal vote.
Issue. Does the Florida Supreme Courts' decision violate the Equal Protection Clause of
the United States Constitution ("Constitution")?
Held. Yes. The Supreme Court of the United States ("Supreme Court") framed the issue
as follows: "[t]he question before the Court is not whether local entities, in the
exercise of their expertise, may develop different systems for implementing
elections. Instead, we are presented with a situation where a state court with the
power to assure uniformity has ordered a statewide recount with minimal
procedural safeguards." The Supreme Court held that "[t]he recount mechanisms
implemented in response to the decisions of the Florida Supreme Court do not
satisfy the minimum requirement for non-arbitrary treatment of voters necessary
to secure the fundamental right." The Supreme Court stated "[u]pon due
consideration of the difficulties identified to this point, it is obvious that the
recount cannot be conducted in compliance with the requirements of equal
protection and due process without substantial additional work." The Supreme
Court observed "[t]his is unobjectionable as an abstract proposition and a starting
principle. The problem inheres in the absence of specific standards to ensure its
equal application. The formulation of uniform rules to determine intent based on
these recurring circumstances is practicable and, we conclude, necessary." "The
recount process, in its features here described, is inconsistent with the minimum
procedures necessary to protect the fundamental right of each voter in the special
instance of a statewide recount under the authority of a single state judicial
297 Bush v. Gore
officer. Our consideration is limited to the present circumstances, for the problem of
equal protection in election processes generally presents many complexities."
Dissent. Justice John Paul Stevens ("J. Stevens"), Justice Ruth Bader Ginsburg ("J.
Ginsburg"), and Justice William Breyer ("J. Breyer") filed a dissenting opinion. The
Justices observed: "[t]he Constitution assigns to the States the primary responsibility for
determining the manner of selecting the Presidential electors. When questions arise about
the meaning of state laws, including election laws, it is our settled practice to accept the
opinions of the highest courts of the States as providing the final answers." The justices
additionally observed that the federal questions in this case were "not substantial." The
justices admitted "the use of differing substandards for determining voter intent in
different counties employing similar voting systems may raise serious concerns. Those
concerns are alleviated--if not eliminated--by the fact that a single impartial magistrate
will ultimately adjudicate all objections arising from the recount process." Further, these
justices criticized the per curiam opinion on a systematic level and observed an
"endorsement of that position by the majority of this Court can only lend credence to the
most cynical appraisal of the work of judges throughout the land. It is confidence in the
men and women who administer the judicial system that is the true backbone of the rule
of law. Time will one day heal the wound to that confidence that will be inflicted by
today's decision. One thing, however, is certain. Although we may never know with
complete certainty the identity of the winner of this year's Presidential election, the
identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an
impartial guardian of the rule of law."
1 • Justice David Souter ("J. Souter") and Justice William Breyer ("J. Breyer")
dissented and would "remand the case to the courts of Florida with
instructions to establish uniform standards for evaluating the several types of
ballots that have prompted differing treatments, to be applied within and
among counties when passing on such identical ballots in any further
recounting (or successive recounting) that the courts might order." Also,
"[u]nlike the majority, [he saw] no warrant for this Court to assume that
Florida could not possibly comply with this requirement before the date set for
the meeting of electors."
2 • J. Ginsburg, J. Stevens, J. Souter and J. Breyer dissented to part I of the per
curiam opinion. These justices felt, "[b]y holding that Article II requires our
revision of a state court's construction of state laws in order to protect one
organ of the State from another, The Chief Justice contradicts the basic
principle that a State may organize itself as it sees fit."
3 • J. Breyer filed a dissenting opinion, portions of which were joined by J.
Stevens, J. Ginsburg and J. Souter. J. Breyer believed, despite the fact the
background of this dispute was a presidential election, "no preeminent legal
concern, or practical concern related to legal questions, required this Court to
hear this case, let alone to issue a stay that stopped Florida's recount process in
its tracks. With one exception, petitioners' claims do not ask us to vindicate a
constitutional provision designed to protect a basic human right." J. Breyer
298 Bush v. Gore
1 advocates Congress, not the federal courts is the proper body to resolve this
sort of electoral dispute. Congress as an elected political body "expresses the
people's will far more accurately than does an unelected court." J. Breyer
would "repair the damage done as best we can now, by permitting the Florida
recount to continue under uniform standards."
Concurrence. Justice William Rehnquist ("J. Rehnquist"), Justice Antonin Scalia ("J.
Scalia"), and Justice Clarence Thomas ("J. Thomas") filed a concurring opinion agreeing
with the per curiam opinion, but writing separately because they felt the Florida Supreme
Court decision should be reversed on additional grounds. The judges observed that based
on Art. II, §1, cl. 2 this is one type of case "in which the Constitution imposes a duty or
confers a power an a particular branch of state government." Also, "[i]n any election but
a Presidential election, the Florida Supreme Court can give as little or as much deference
to Florida's executives as it chooses, so far as Article II is concerned, and this Court will
have no cause to question the court's actions. But, with respect to a Presidential election,
the court must be both mindful of the legislature's role under Article II in choosing the
manner of appointing electors and deferential to those bodies expressly empowered by
the legislature to carry out its constitutional mandate." Florida created a comprehensive
statutory scheme to provide for "appointment of Presidential electors". However, the way
the Florida Supreme Court interpreted "legal vote" and its "decision to order a contest-
period recount, plainly departed from Florida's legislative scheme." No basis exists "for
reading the Florida statutes as requiring the counting of improperly marked ballots."
Also, the concurring justices observed that the recount could not possibly be completed
within the requisite time constraints.
Discussion. This case implicates the interaction between state law and federal law. It is
interesting to examine how the different justices balance these competing bodies of law
in the context of a presidential election.
299 Boddie v. Connecticut
Boddie v. Connecticut
Citation. 401 U.S. 371 (1971).
Brief Fact Summary. The Petitioners, Boddie and others (Petitioners), brought suit
against the Respondent, Connecticut's (Respondents) divorce policies, which on average
cost $60 per litigant. The Petitioners represent married indigents who cannot afford a
divorce.
Synopsis of Rule of Law. If marriage is a fundamental right available to all citizens,
divorce must be available to all citizens as well.
Facts. The average cost of a divorce in Connecticut is $60 per litigant. Currently, if an
individual cannot afford the cost of divorce, he cannot file for one. The Petitioners allege
that this denies indigents equal protection under the laws.
Issue. Does discriminating against indigents in applying for divorce violate the Equal
Protection Clause of the Fourteenth Amendment of the United States Constitution
(Constitution)?
1 • Justice John Marshall Harlan (J. Harlan) notes that since marriage is a
fundamental right in our society the government must show a compelling
interest to discriminate in the application of. Conversely, if marriage is a
fundamental right totally controlled by the State, divorce must be in the
same category.
2 • Requiring payment of fees to apply for divorce creates two classes of
individuals: those who can pay the fee and those who cannot. The State
cannot offer a compelling interest to maintain this distinction. As such, the
requirements are unconstitutional.
Dissent. Justice Hugo Black (J. Black) argues that because of the state-controlled nature
of marriage, unless there is a specific constitutional prohibition against it, the State of
Connecticut may do as it pleases.
Discussion. The majority says that a fundamental right cannot be denied to people on the
basis of wealth. The dissent says that when a power is delegated to the States, there must
be a specific constitutional provision to allow the Supreme Court of the United States
(Supreme Court) to rule a given statute unconstitutional.
300 United States v. Kras
United States v. Kras
Citation. 409 U.S. 434 (1973).
Brief Fact Summary. The Respondent, Kras (Respondent), attempted to file for federal
bankruptcy protection, but was unable to afford the filing fees. The Respondent now
challenges the constitutionality of denying him bankruptcy protection for inability to pay
such feed.
Synopsis of Rule of Law. Bankruptcy filing is not a fundamental right.
Facts. The Respondent lived in a small apartment with his wife, two children, and elderly
mother. The Respondent receives public assistance as well as a small amount of income
he earns himself. The Respondent cannot even afford to save up for a full year to afford
the bankruptcy filing fee.
Issue. Is an indigent entitled to free federal bankruptcy filing?
Held. No. Case reversed and remanded. Justice Harry Blackmun (J. Blackmun) holds that
bankruptcy is not a fundamental right. As a fundamental right is not involved, only a
rational basis is required for any classifications.
Dissent.
1 • Justice Potter Stewart (J. Stewart) recognizes that there are no
"recognized, effective alternatives" available to the Respondent. Without
bankruptcy protection, the Respondent will remain in insurmountable debt
for the foreseeable future.
2 • Justice Thurgood Marshall (J. Marshall) writes separately to condemn
the majority for advancing "unfounded assumptions about how people
live."
Discussion. The majority offers a sound argument here: no fundamental right, no suspect
classification. The difficulty with this case is its finding that an individual does not have
enough money to be bankrupt.
301 M.L.B. v. S.L.J.
M.L.B. v. S.L.J.
Citation. 519 U.S. 102 (1996).
Brief Fact Summary. The Petitioner, M.L.B. (Petitioner), lost custody of her children
and cannot afford to appeal the decision. She argues that such a fundamental right
requires the State to pay for the costs of her appeal.
Synopsis of Rule of Law. The loss of parental rights is the loss of a fundamental right.
Facts. The Petitioner lost custody of her two minor children when their stepmother, the
Respondent, S.L.J. (Respondent), sued for adoption. The Petitioner is indigent and cannot
pay record preparation fees of over $2,000 to appeal the trial court judgment.
Issue. Must the State provide for appeal of an indigent's loss of child custody?
Held. Yes. Reversed and remanded. Justice Ruth Bader Ginsburg (J. Ginsburg) argues
that as a petty criminal must be afforded access to appellate justice, so must the indigent
parent whom the courts have found unfit. Fee requirements are not examined only for
rationality when a fundamental right is involved.
Dissent. Justice Clarence Thomas (J. Thomas) dissents in large part by noting the
difference between criminal and civil cases. He does not view there to be an inherent
right to appeal in any civil case.
Discussion. While it is true that a fundamental right has been abrogated here, the dissent
argues that Due Process has already been satisfied. If the Petitioner had an equal
protection complaint, it would have been at the trial level. The majority gives extra
protection to indigent rights, where the loss of family is concerned.
302 Lewis v. Casey
Lewis v. Casey
Citation. 518 U.S. 343 (1996).
Brief Fact Summary. Prisoners sued the State of Arizona, alleging they were deprived
of rights of access to courts and counsel.
Synopsis of Rule of Law. Access to the courts by prisoners requires that prisoners be
able to address their own cases, not become legal experts.
Facts. The Respondents, Casey and other inmates (Respondents), allege that the
Petitioners, Lewis and others associated with the Department of Corrections (Petitioners),
have not presented them with up-to-date legal materials, legal libraries and photocopying
services, among others. The Respondents allege that these denials have denied them the
ability to access the courts.
Issue. Do prisoners have rights to particular, specific materials under the United States
Held. No. Reversed. Justice Antonin Scalia (J. Scalia) points out that the Respondent
inmates have not alleged specific injuries, only generalized grievances. Because of this,
the Respondents do not have standing to bring suit.
Dissent. Justice John Paul Stevens (J. Stevens) argues that the Supreme Court of the
United States' views on standing are too strict and that the Respondents have at least a
right to bring suit.
Concurrence. Justice Clarence Thomas (J. Thomas) agrees in the judgment, but writes
separately to decry what he sees as overreaching of federal district courts in running the
day-to-day affairs of prisons.
Discussion. The majority only briefly touches on substantive issues of the complaint, as
J. Scalia is more interested in dismissing the case for want of standing. Even then, it is
clear the majority feels that prisoners are asking for too much, even in their generalized
complaints.
303 San Antonio Independent School District v. Rodriguez
San Antonio Independent School District v. Rodriguez
Citation. 411 U.S. 1 (1973).
Brief Fact Summary. Respondents brought a class action on behalf of parents and
students residing in poor school districts in Texas, alleging the State's system of funding
schools based on local property taxes denies equal protection to students in poor districts.
Synopsis of Rule of Law. Education is not a "fundamental right" for purposes of Equal
Protection analysis.
Facts. The State of Texas provides for free primary and secondary education for the
children of the State. The state provides a set amount of funding for each district based on
the number of students in the district. The district makes up the difference in operating
expense with funds from local property taxes. This reliance on property taxes results in a
large disparity in per student spending between property rich and property poor districts.
Respondents allege that this denies the children in poor district Equal Protection of the
laws in violation of the Fourteenth Amendment.
Issue. Is education a fundamental right for purposes of the Fourteenth Amendment?
1 • If education is a fundamental right, classifications affecting access to
education are subject to strict scrutiny.
2 • There is no mention of education in the Constitution. Thus, there is no
explicit constitutional guarantee. The question is now one of whether
education is implicitly a fundamental right. The Court notes that
Respondents do not argue that there is some quantum of education that is
fundamental and which the class is not receiving. Nor do they argue that
the class is entitled to the best education provided by public schools in
Texas.
3 • Without explicit or implicit constitutional protections, the fiscal
decisions of the State of Texas are beyond review of the Court, unless they
lack a rational basis. Such a lacking is not found by the Court.
4 • Thus, the Court applied the rational basis test to require the Texas law to
be rationally related to a legitimate government interest.
Dissent.
1 • Justice William Brennan dissents along two arguments: (1) the funding
system of the State of Texas lacks a logical basis, and (2) that the explicit
or implicit constitutional guarantee analysis advanced by the Court ignores
the Court's previous decisions.
304 San Antonio Independent School District v. Rodriguez
1 • Justice Thurgood Marshall argues that a right's "fundamentality"
depends on the importance of the right in effectuating constitutional
guarantees. Justice Marshall argues that education is so important to the
exercise of rights protected by the First Amendment and to participation in
the political process to create a significant nexus between education and
these rights, making it fundamental. "As the nexus between the specific
constitutional guarantee and the non-constitutional interest draws closer,"
the more appropriate heightened scrutiny becomes. Thus, Justice Marshall
would apply a more stringent test than rational basis.
Discussion. The Court notes that a fundamental right gives rise to strict scrutiny by the
Court where legislation creates classifications surrounding the right. This is most easily
understood as a policy decision by the Court, with the majority holding that the
preferable policy is to limit the amount and type of legislation which is subject to strict
scrutiny. The importance of this case lies in an understanding of the different levels of
equal protection analysis.
305 Daniels v. Williams
Daniels v. Williams
Citation. 474 U.S. 327 (1986).
Brief Fact Summary. Daniels (Petitioner) seeks damages for injuries he sustained while
he was an inmate at the jail.
Synopsis of Rule of Law. Negligent government action is not a deprivation of individual
interest, and is not a violation of Due Process.
Facts. Petitioner was an inmate at the local jail. One day, he slipped on a pillow left in
the stairwell by Williams (Respondent), a correctional deputy. Petitioner claims that
Respondent's negligence led to the deprivation of his "liberty" interest in freedom from
bodily injury.
Issue. Does negligence by a government actor equate to deprivation under the Due
Process Clause?
Held. No. Mere negligence does not require compensation according to the United States
Constitution.
Discussion. The purpose of Due Process is to protect the individual from action by the
government. This refers to arbitrary actions by the government that infringes upon an
individual's rights. This does not include failure to exercise due care in the maintenance
of a building.
306 County of Sacramento v. Lewis
County of Sacramento v. Lewis
Citation. 523 U.S. 833 (1998).
Brief Fact Summary. Lewis (Respondent) was a passenger on a motorcycle that was
chased by police. When the motorcycle stopped, the police cruiser did not. Respondent
was hit and killed at the scene.
Synopsis of Rule of Law. Government conduct that "shocks the conscience" and violates
the "decencies of civilized conduct" also violates the Fourteenth Amendment. In
emergency situations, the government is afforded greater leeway.
Facts. A police officer was responding to a fight when Respondent and another failed to
adhere to the police demand to stop. Instead of stopping, they maneuvered between
police cars and sped off. The officer chose to pursue Respondent through a residential
neighborhood at speeds of up to 100 mph. While trying to make a sharp left turn, the
motorcycle slid and both driver and passenger were thrown. The cruiser avoided hitting
the driver, but hit Respondent and threw him 70 feet. He was pronounced dead at the
scene.
Issue. Did the officer violate substantive due process when he caused the death of
Respondent during a high-speed chase?
Held. No. The police officer did not intend to harm or worsen the plight of Respondent.
Discussion. The police officer was doing his job and using his best judgment at the time
of the pursuit. He did not intend to kill Respondent or harm him in any way. If he had,
then the conduct would be "shocking" and held to violate the United States Constitution.
307 DeShaney v. Winnebago County Dept. of Social Services
DeShaney v. Winnebago County Dept. of Social Services
Citation. 489 U.S. 189 (1989).
Brief Fact Summary. The Petitioner, DeShaney (Petitioner), was beaten into a coma by
his father. He later recovered, but was confined to an institution for the severally mentally
retarded as a result of his injures. During the entire time he was being beaten, the
Respondent, Winnebago County Dept. of Social Services (Respondent), was monitoring
his home and paying regular visits.
Synopsis of Rule of Law. The Due Process Clause provides no affirmative right to
governmental aide. It is meant to protect individuals from state actors not other
individuals.
Facts. The Petitioner was born in 1979. His parents divorced in 1980 and his father was
given custody of him. His father moved to Wisconsin where he remarried and later
divorced. His second wife informed authorities of child abuse against the Petitioner and
the Respondent interviewed the father. He denied the accusations. Then in 1982 a local
hospital reported the Petitioner's suspicious injuries to the Respondent. The Respondent
began monitoring the situation and visiting the child's home. The social worker noted on
at least several occasions that the Petitioner appeared to be suffering from child abuse,
yet the Respondent left the Petitioner in the custody of his father. Finally, in 1983 the
Petitioner was admitted to the hospital and fell into a coma due to a series of hemorrhages
caused by traumatic injuries to the head inflicted over a long period of time. The father
was eventually convicted of child abuse.
Issue. By failing to intervene to protect the Petitioner from the abuse of his father did the
Respondent deny the Petitioner his liberty without due process?
Held. No. A state's failure to protect someone from violence by another individual is not
a violation of the Due Process Clause. Although the state may be aware of a person's
situation, it is only required to protect the person when it has deprived the individual the
freedom to act on his own behalf.
Dissent.
1 • Justice William Brennan (J. Brennan): The state developed the social
service program specifically to help children like the Petitioner. Because
of this intervention and greater awareness of the situation, the state had an
affirmative duty to act.
2 • Justice Harry Blackmun (J. Blackmun): The majority fails to see the duty
of the state because its focuses on a rigid classification of action and
inaction.
Discussion. When a person is reliant upon the state as a caretaker, then the state has a
greater responsibility to protect the person. In this case, had the Petitioner been a ward of
308 DeShaney v. Winnebago County Dept. of Social Services
the state or in foster care, the state would have had an affirmative duty to remove him
from the abusive home.
309 Goldberg v. Kelly
Goldberg v. Kelly
Citation. 397 U.S. 254 (1970).
Brief Fact Summary. New York residents were receiving financial aid under a state
program. The state chose to terminate certain benefits without providing the recipients
notice.
Synopsis of Rule of Law. Generally, a qualified recipient of public aide has a legitimate
property interest in the continuance of such benefits.
Facts. New York City residents were receiving aid under the Aid to Families with
Dependent Children or the Home Relief Program. The state decided to terminate support
to certain families. At the time there was no requirement of prior notice or a hearing of
any kind.
Issue. Did the state violate the Due Process Clause of the Fourteenth Amendment when it
terminated assistance payments to recipients without holding an evidentiary hearing?
Held. Yes. Persons receiving public assistance have a legitimate property right interest in
it. Therefore, at least an administrative hearing should be held to determine assistance
eligibility before it is completely withdrawn.
Dissent. Welfare laws should be left to the legislature and not forced into the constructs
of the United States Constitution (Constitution). Welfare is a charity program which the
state should be free to regulate as it sees fit.
Discussion. Because the recipients rely on the assistance for their livelihood, the majority
assigns a property right to the monies. It regards this aide as an "essential" component to
the recipient's life and is not a form of charity.
310 Board of Regents v. Roth
Board of Regents v. Roth
Citation. 408 U.S. 564 (1972).
Brief Fact Summary. The Respondent, Roth (Respondent), was a new college professor.
He was hired on a yearly contract that was not renewed. The university provided no
explanation for the choice to not renew the contract.
Synopsis of Rule of Law. Procedural protection of property rights inure only after one
has acquired benefits. There must be a legitimate entitlement to the benefit.
Facts. The Petitioner, the Board of Regents (Petitioner), had a rule that allowed college
professors to acquire tenure after four years of continued employment at a university.
However, the first years of employment are left to the discretion of the institutions. They
could hire and fire every year as they chose. The Respondent taught at Wisconsin State
University for the 1968-1969 academic year. During that year he was told that his
contract was not going to be renewed for the following year. As a result he brought suit
claiming this termination policy violated his Due Process rights.
Issue. Did the decision to not rehire the Respondent violate his Due Process rights?
Held. No. By declining to rehire the Respondent, the university did not infringe upon any
of the liberties or freedoms that he has.
Dissent. The university owed the Respondent an explanation for not rehiring him because
everyone who applies or works for the government is entitled to this information.
Discussion. The Respondent did not have property rights in the job because he had a one-
year contract that specifically stated he would no longer be employed at the end of the
year. No property rights exist in one's expectations. So, it was unreasonable for the
Respondent to expect to gain tenure. On the other hand, the university caused no damage
to his reputation, nor did it prevent him from finding another job. Therefore, his rights
were not violated.
311 Goss v. Lopez
Goss v. Lopez
Citation. 419 U.S. 565 (1975).
Brief Fact Summary. Students of the city public school system were suspended from
school without a hearing either before or shortly after the suspensions.
Synopsis of Rule of Law. Student's have a legitimate property right in their education,
which is protected by the Due Process Clause. This right cannot be taken away without
appropriate procedural hearings.
Facts. The Ohio Revised Code allows a school principal to suspend a pupil for up to 10
days or expel him for misconduct. If the student is expelled he is entitled to hearing that
could lead to his reinstatement. However, if the student is just suspended, there is no
provision for a hearing or reconsideration of the suspension. The Appellees, Lopez and
others (Appellees) were all suspended from the Columbus Pubic School System for up to
10 days, each without a hearing.
Issue. Did the Columbus Public School System violate the Appellees' due process rights
when it suspended each without having a hearing?
Held. Yes. Ohio may not withdraw the right to an education on the grounds of
misconduct absent fair procedures to determine if the misconduct has occurred.
Dissent. The majority has created a new constitutional right for school aged children.
They cannot be suspended without a hearing. This case removes the control of the
classroom from the trained educational administrators and imposes judicial interference.
Discussion. The majority provides students with a manner of protecting their right to
attend school by making the administrators document the misconduct and provide the
report to the student's parents. At that point, the student may choose to refute the
allegation and request a hearing. This protects the rights, but also gives the administrators
the freedom to discipline children as necessary and maintain order in the schools.
312 Paul v. Davis
Paul v. Davis
Citation. 424 U.S. 693 (1976).
Brief Fact Summary. The Petitioner, Paul (Petitioner), as the police chief, issued a
bulletin to area storeowners warning of persons known to be shoplifters. The Respondent,
Davis (Respondent), was on that list. He claims his reputation was injured by this action.
Synopsis of Rule of Law. Reputation alone, apart from some more tangible interests
such as employment is neither liberty nor property for Due Process purposes.
Facts. The Petitioner is the police chief in Louisville, Kentucky. In order to alert local
merchants of potential shoplifters, he sent a memo containing the mug shots of those who
had charges brought against them. The Respondent was on page 2 of the memo. He had
been arraigned on the charge and pleaded not guilty. At the time the memo was
published, Respondent's charge was not resolved, but the charge was later dismissed.
Issue. Did the Petitioner deprive the Respondent of his liberties by designating him as an
"active shoplifter"?
Held. No. Kentucky law does not extend to the Respondent any legal guarantee or
present enjoyment of reputation which has been altered as a result of the Petitioner's
actions. The Respondent was not deprived of any liberty or property interests protected
by the Due Process Clause.
Dissent. This decision allows law enforcement to run unchecked and accuse anyone
without repercussion. Thus, the individual is unfairly prejudiced before a trial is had
based on public opinion that has been tainted by the police.
Discussion. The posting of a mug shot in some stores does not deprive the Petitioner of
any liberties. He is still free to go to those stores and shop. Also, the memo is not an
official criminal record that would fall into the hands of future employers. So, the
potential damage to his reputation is minimal.
313 Mathews v. Eldridge
Mathews v. Eldridge
Citation. 424 U.S. 319 (1976).
Brief Fact Summary. The Respondent, Eldridge (Respondent), was a disabled worker
who had been receiving Social Security benefits. After a case review by the state agency
responsible for monitoring his medical condition, the Respondent's benefits were
terminated without a hearing.
Synopsis of Rule of Law. The appropriateness and scope of a prior evidentiary hearing is
determined by balancing 3 factors: (1) the private interest that will be affected; (2) the
risk of mistakenly depriving an individual of his interest and (3) the value of instituting
additional or substitute safeguards.
Facts. The Respondent had been receiving federal disability coverage for several years
when a state agency reviewed his medical condition. After reviewing his medical records
and obtaining a psychiatric consult, the agency determined that the Respondent was no
longer disabled. The agency wrote the Respondent a letter, explaining its findings and
providing an opportunity for the Respondent to request time to provide additional
information to prove his disability. But, after the Respondent refused to provide
additional information, the agency made its final determination, which was accepted by
the Social Security Administration. This led to the termination of his Social Security
disability benefit.
Issue. Is it a violation of the Due Process clause to discontinue a recipient's Social
Security disability benefits without holding an evidentiary hearing?
Held. No. An evidentiary hearing is not required prior to the termination of disability
benefits. The present administrative procedures fully comply with the requirements of the
Due Process Clause.
Dissent. Prior to terminating benefits, a governmental agency must afford an evidentiary
hearing.
Discussion. This case is different than the welfare case, Goldberg, because the level of
disability is something that can be ascertained through the use of expert medical opinion
and written reports. Therefore, the value of an evidentiary hearing is greatly diminished.
Furthermore, before a final ruling was made the Respondent had the opportunity to see
the results, all reports relied upon, and provide additional proof of disability.
314
CHAPTER IX. First

Amendment:
Freedom Of
Expression
315 Turner Broadcasting System, Inc. v. Federal Communications Commission
Turner Broadcasting System, Inc. v. Federal Communications
Commission
Citation. 512 U.S. 622 (1994).
Brief Fact Summary. Federal legislation requires cable television companies to devote a
portion of their channels to local programming.
Synopsis of Rule of Law. It is unconstitutional for the government to place on burdens
on speech because of its content. Laws that distinguish between types of speech based on
the ideas or views expressed are content-based and subject to strict scrutiny.
Facts. The Cable Television Consumer Protection and Competition Act of 1992 (the
Act), required cable companies to devote a certain number of their channels to the
transmission of local broadcast television stations. This Act limits cable companies by
reducing the number of channels that they control and it makes it more difficult for the
companies to compete for the remaining channels.
Issue. Is this 'must-carry' mandate a violation of the freedom of the speech or press?
Held. No. This law does not impose burdens or confer benefits based on the content of
the speech. The only burden is associated with the number of channels a cable company
can offer. Any government regulation that limits speech because of its content is subject
to the "most exacting scrutiny while those that are unrelated to content are subject to an
intermediate level of scrutiny."
Dissent. The interest in diversity of programming is not content-neutral. The intent of the
regulation is to continue to provide local access to news and community information.
Although this goal is not harmful it still does not excuse the need for strict scrutiny.
Concurrence. Content-neutral regulations are not subject to strict scrutiny.
Discussion. The majority justifies its decision by weighing the impact of forcing the
cable systems to carry local stations against the purpose of the requirement. The
regulation does not force an opinion on to the viewing public or limit access to certain
views. Therefore, it is content-neutral and constitutional.
316 Boos v. Berry
Boos v. Berry
Citation. 485 U.S. 312 (1988).
Brief Fact Summary. The Petitioner, Boos (Petitioner), wants to display signs in front of
the embassies in Washington, D.C. There is a local statute that prohibits such displays if
they are negative.
Synopsis of Rule of Law. Content-based restriction on political speech in a public forum
is subjected to strict scrutiny. To be constitutional, the regulation must be necessary to
serve a compelling state interest that is narrowly drawn to achieve that end.
Facts. Washington, D.C. has a code that prohibits people from displaying signs within
500 feet of a foreign embassy if the signs will bring the foreign government into "public
odium" or "public disrepute". The Petitioner wants to display a sign in front of the Soviet
embassy that reads, "RELEASE SAKHOROV."
Issue. Does this restriction violate the First Amendment constitutional right to free
speech?
Held. Yes. The display statute regulates speech based on it potential impact. It prohibits
political speech and is clearly content-based. Protecting foreign dignitaries from insults is
not a compelling governmental interest in support of a content-based regulation.
Discussion. This regulation focuses on what a picket card would say. It discriminates
between the types of speech because a picket sign regarding employment disputes would
be allowed while political opinions that are negative are prohibited.
317 Republican Party of Minnesota v. White
Republican Party of Minnesota v. White
Citation. 536 U.S.765
Brief Fact Summary. A Minnesota legal restriction forbidding a "candidate for a judicial
office, including an incumbent judge," from "announce[ing] his or her views on disputed
legal or political issues" was at issue.
Synopsis of Rule of Law. Minnesota's "announce clause" violated the First Amendment
of the United States Constitution ("Constitution").
Facts. Judges in Minnesota are elected. Since 1974, judges running for an election had
been subject to a legal restriction – the "announce clause" – forbidding a "candidate for a
judicial office, including an incumbent judge," from "announce[ing] his or her views on
disputed legal or political issues." Stiff penalties were attached to a violation of the
restriction. In 1996, one of the Petitioners, Gregory Wersal (the "Petitioner"), ran for a
judgeship and "distributed literature criticizing several Minnesota Supreme Court
decisions on issues such as crime, welfare, and abortion." A complaint was brought
against the Petitioner, which included allegations that he violated the "announce clause".
The complaint was eventually dropped because of questions about the "announce
clause's" constitutionality, but the Petitioner nonetheless dropped out of the election, out
of fear that he would be disbarred. The Petitioner ran again in 1998 and requested an
opinion from the Lawyers Board (the "Board") asking whether the "announce clause"
would be enforced. The Board would not give him a definitive answer.
Issue. "[W]hether the First Amendment permits the Minnesota Supreme Court to prohibit
candidates for judicial election in that State from announcing their views on disputed
legal and political issues."
Held. Justice Antonin Scalia ("J. Scalia"), writing for the majority, summarized the scope
of the announce clause as follows: "[i]n any event, it is clear that the announce clause
prohibits a judicial candidate from stating his views on any specific nonfanciful legal
question within the province of the court for which he is running, except in the context of
discussing past decisions--and in the latter context as well, if he expresses the view that
he is not bound by stare decisis." J. Scalia then specified the topics that can be discussed
by a candidate. They included "a candidate's 'character,' 'education,' 'work habits,' and
'how [he] would handle administrative duties if elected.' " Further, "how the candidate
feels about cameras in the courtroom, how he would go about reducing the caseload, how
the costs of judicial administration can be reduced, and how he proposes to ensure that
minorities and women are treated more fairly by the court system."
1 • The announce clause was deemed to be both a content based prohibition and
a burden on a type of speech at the core of the First Amendment. As a result,
the proper standard of review to be applied was strict scrutiny. "Under the
strict-scrutiny test, respondents have the burden to prove that the announce
clause is (1) narrowly tailored, to serve (2) a compelling state interest."
1 Further, "to show that the announce clause is narrowly tailored, they must
demonstrate that it does not 'unnecessarily circumscrib[e] protected
expression.' " J. Scalia recognized the Respondents argued two interests were
"sufficiently compelling to justify the announce clause: preserving the
impartiality of the state judiciary and preserving the appearance of the
impartiality of the state judiciary."
2 • J. Scalia found that it was imperative to precisely define the term
"impartiality". He discussed three possible meanings of the word. First, a
"lack of bias for or against either party to the proceeding". Impartiality in this
sense "guarantees a party that the judge who hears his case will apply the law
to him in the same way he applies it to any other party." Based on this
definition, J. Scalia concluded "the announce clause is not narrowly tailored to
serve impartiality (or the appearance of impartiality) in this sense." Is "is
barely tailored to serve that interest at all, inasmuch as it does not restrict
speech for or against particular parties, but rather speech for or against
particular issues." Second, "a lack of preconception in favor of or against a
particular legal view." The majority observed "[a] judge's lack of
predisposition regarding the relevant legal issues in a case has never been
thought a necessary component of equal justice, and with good reason."
Further, it is unrealistic that a justice would not have any preconceived views.
As such, "avoiding judicial preconceptions on legal issues is neither possible
nor desirable, pretending otherwise by attempting to preserve the 'appearance'
of that type of impartiality can hardly be a compelling state interest either."
Third, "impartiality" can be defined as openmindedness. In other words a
judge would "be willing to consider views that oppose his preconceptions, and
remain open to persuasion, when the issues arise in a pending case." The court
found that the Minnesota Supreme Court did not have this purpose in mind
when the "announce clause" was adopted.
3 • J. Scalia then recognized "debate on the qualifications of candidates" is "at
the core of our electoral process and of the First Amendment freedoms," not at
the edges. "The role that elected officials play in our society makes it all the
more imperative that they be allowed freely to express themselves on matters
of current public importance." "It is simply not the function of government to
select which issues are worth discussing or debating in the course of a
political campaign." "We have never allowed the government to prohibit
candidates from communicating relevant information to voters during an
election."
Dissent. Justice John Paul Stevens ("J. Stevens") filed a dissenting opinion upon which
Justice David Souter ("J. Souter"), Justice Ruth Bader Ginsburg ("J. Ginsburg"), and
Justice William Breyer ("J. Breyer") joined. J. Stevens argued "[t]he Court's disposition
rests on two seriously flawed premises--an inaccurate appraisal of the importance of
judicial independence and impartiality, and an assumption that judicial candidates should
have the same freedom 'to express themselves on matters of current public importance' as
do all other elected officials." Additionally, J. Stevens argued that Minnesota has a
compelling interest in sanctioning statements such as "Vote for me because I believe X,
and I will judge cases accordingly," because by making such statements, a judge
"announces his position on an issue likely to come before him as a reason to vote for
him."
1 • Justice Ruth Bader Ginsburg ("J. Ginsburg") filed a dissenting opinion upon
which Justice John Paul Stevens ("J. Stevens"), Justice David Souter ("J.
Souter"), and Justice William Breyer ("J. Breyer") joined. J. Ginsburg
disagreed "with this unilocular, 'an election is an election,' approach. Instead,
[she] would differentiate elections for political offices, in which the First
Amendment holds full sway, from elections designed to select those whose
office it is to administer justice without respect to persons." She argued the
"Court's unrelenting reliance on decisions involving contests for legislative
and executive posts is manifestly out of place."
Concurrence. J. Sandra Day O'Connor ("J. O'Connor") filed a concurring opinion

expressing her general concerns about judicial elections. J. O'Connor felt that the election
of justices undermined the actual and perceived partiality of judges. She felt that judges
will impermissibly have a stake in the outcome of all their cases, if subject to recurrent
elections. Further, that the monies necessary to support a campaign are quite substantial,
and much of those monies will come from fundraising efforts. Leading to indebtedness to
those that gave them the funds.
1 • Justice Anthony Kennedy ("J. Kennedy") filed a concurring opinion
"adhere[ing] to [his] view [ ] that content-based speech restrictions that do not
fall within any traditional exception should be invalidated without inquiry into
narrow tailoring or compelling government interests." "What Minnesota may
not do, however, is censor what the people hear as they undertake to decide
for themselves which candidate is most likely to be an exemplary judicial
officer." Further, "[t]he law in question here contradicts the principle that
unabridged speech is the foundation of political freedom."
Discussion. This case offers an interesting discussion about how the First Amendment is
applied to political speech.
320 City of Renton v. Playtime Theaters, Inc.
City of Renton v. Playtime Theaters, Inc.
Citation. 475 U.S. 41 (1986).
Brief Fact Summary. The Petitioner, City of Renton (Petitioner), passed a zoning code
restricting the location of adult movie stores within the city.
Synopsis of Rule of Law. A regulation that is content-based on its face may be
considered content neutral if it is motivated by a permissible content-neutral purpose.
Facts. The Petitioner's zoning code prohibited adult movie theaters from locating
themselves within 1,000 feet of any residential area, church, park or school. However,
they were not completely banned from the city.
Issue. Is this zoning ordinance a violation of First Amendment freedom of speech rights
of the Respondent, Playtime Theaters, Inc. (Respondent)?
Held. No. The Petitioner had a substantial interest in avoiding the secondary effects of
the adult stores and also allows the stores to be located in other areas of town. Thus, it is
a constitutional content-neutral regulation.
Dissent. The ordinance places restrictions on establishments based on the content of the
expression within it. Therefore, this is a content-based regulation.
Discussion. Because the ordinance does not ban the adult theaters completely, it is not
content-based. As a content-neutral regulation it is subject to the time, place, manner
analysis where a regulation is constitutional as long as it serves a substantial
governmental interest and does not unreasonably limit alternative avenues of
communication.
321 National Endowment for the Arts v. Finley
National Endowment for the Arts v. Finley
Citation. 524 U.S. 569 (1998).
Brief Fact Summary. The Respondent, Finley (Respondent), was denied a federal grant
to fund her performance art after the Petitioner, National Endowment for the Arts
(Petitioner), determined that it might offend the general standards of decency.
Synopsis of Rule of Law. A law is facially valid as long as it does not suppress
disfavored viewpoints.
Facts. The Petitioner is a federal agency that provides funding for the arts. Applications
for these funds are reviewed by advisory panels that inform the Petitioner of their
recommendations. The Petitioner has the ultimate authority to grant funding for projects,
but cannot approve anything the advisory council rejects. In 1989, two provocative works
prompted public controversy leading to the reevaluation of the project selection process.
As a result, Congress adopted a law that made the Petitioner consider the "general
standards of decency and respect for the diverse values of the American public."
Issue. Is the new law invalid on its face and therefore a violation of the First Amendment
right to free speech?
Held. No. This law is constitutional as it does not interfere with freedom of speech rights
and it is not overly vague.
Dissent. The "decency and respect" inclusion criteria makes this a view-point based
decision that should not be exempted from the general rule that makes content-based laws
unconstitutional.
Discussion. This law only requires the Petitioner to consider factors of decency. It does
not mandate that all explicit works be denied federal grants. Therefore, it is not an
unconstitutional content-based rule.
322 United States v. American Library Association, Inc.
United States v. American Library Association, Inc.
Citation. 539 U.S. 194 (2003)
Brief Fact Summary. An act of Congress conditioned the receipt of federal funds by
public libraries, on those libraries installing filters on their computers to block children's
access to certain material.
Synopsis of Rule of Law. "[I]t is entirely reasonable [ ] [for libraries to] exclude certain
categories of content, without making individualized judgments that everything they do
make available has requisite and appropriate quality."
Facts. Congress enacted the Children's Internet Protection Act (the "Act") to combat the
availability of internet pornography in public libraries. The Act conditioned the receipt of
federal funds by public libraries on installing software that will block pornographic
images. The district court held these provisions violated the library patrons' First
Amendment constitutional rights.
Issue. Does the Act violate the First Amendment of the United States Constitution
("Constitution")?
Held. The plurality first observed that "Congress has wide latitude to attach conditions to
the receipt of federal assistance to further its policy objectives but may not 'induce' the
recipient 'to engage in activities that would themselves be unconstitutional' " The court
compared a library's use of judgment in not allowing pornography on its shelves and
choosing which works it wants in its collection, to a library filtering internet material to
stop the flow of pornography. This is the traditional role of a library. Further, the court
recognized libraries cannot segregate item by item all pornographic material on the
internet. As such, "it is entirely reasonable for public libraries to reject that approach and
instead exclude certain categories of content, without making individualized judgments
that everything they do make available has requisite and appropriate quality."
1 • The plurality criticized the dissent's argument that filters a have a tendency
to "overblock", meaning block material that is constitutionally protected and
should be available to the public. The plurality said this problem could be
remedied by disabling the filtering software. All a library patron has to do is
ask the librarian to disable the filter. The court also rejected the argument that
library patrons will not ask for the filters to be disabled because they are
embarrassed. The plurality found the constitution does not provide a right to
the acquisition of information, without the risk of embarrassment.
2 • "Because public libraries' use of Internet filtering software does not violate
their patrons' First Amendment rights, CIPA does not induce libraries to
violate the Constitution, and is a valid exercise of Congress' spending power."
Dissent. Justice John Paul Stevens ("J. Stevens") filed a dissenting opinion, arguing that
the Act is an unconstitutional restraint on speech. J. Stevens criticized the "fundamental
defects" in the filtering software. For example, "the software relies on key words or
phrases to block undesirable sites, it does not have the capacity to exclude a precisely
defined category of images." The software both "underblocks" and gives parents a false
sense of security and "overblocks", which blocks constitutionally protected speech. As to
the "overblocks", J. Stevens observed "[n]either the interest in suppressing unlawful
speech nor the interest in protecting children from access to harmful materials justifies
this overly broad restriction on adult access to protected speech." J. Stevens concluded
that the statute resulted in "a significant prior restraint on adult access to protected
speech." Additionally that "it impermissibly conditions the receipt of Government
funding on the restriction of significant First Amendment rights."
1 • Justice David Souter ("J. Souter") and Justice Ruth Bader Ginsburg ("J.
Ginsburg") filed a dissenting opinion agreeing with J. Stevens' dissenting
opinion, but also arguing that the Act imposed "an unconstitutional condition
on the Government's subsidies to local libraries for providing access to the
Internet." Additionally, J. Souter felt "the blocking rule [is] invalid in the
exercise of the spending power under Article I, § 8: the rule mandates action
by recipient libraries that would violate the First Amendment's guarantee of
free speech if the libraries took that action entirely on their own." The
question for J. Souter, which he answered in the negative "[wa]s whether a
local library could itself constitutionally impose these restrictions on the
content otherwise available to an adult patron through an Internet connection,
at a library terminal provided for public use"? Further, "[a] library that chose
to block an adult's Internet access to material harmful to children (and
whatever else the undiscriminating filter might interrupt) would be imposing a
content- based restriction on communication of material in the library's
control that an adult could otherwise lawfully see." In other words, an act of
censorship. J. Souter also faulted the pluralities comparison of internet
blocking with libraries choosing which works to include in their collections.
Concurrence. Justice Anthony Kennedy ("J. Kennedy") filed a concurring opinion

recognizing that based on the facial challenge before the Supreme Court of the United
States ("Supreme Court"), there is not much of a case if the library administrators
unblock certain sights without much delay. If some libraries did not have this capability,
an as-applied challenge may be appropriate. J. Kennedy also recognized the compelling
interest involved in this case "protecting young library users from material inappropriate
for minors."
1 • Justice Stephen Breyer ("J. Breyer") filed a concurring opinion advocating
the application of a form of heightened scrutiny by "examining the statutory
requirements in question with special care". Neither a rational basis review
nor a presumption as to the statutes constitutionality was appropriate.
However, strict scrutiny was too strict of a standard for this analysis. J. Breyer
advocated asking whether "the harm to speech-related interests is
disproportionate in light of both the justifications and the potential
1 alternatives." Additionally the court "has considered the legitimacy of the
statute's objective, the extent to which the statute will tend to achieve that
objective, whether there are other, less restrictive ways of achieving that
objective, and ultimately whether the statute works speech-related harm that,
in relation to that objective, is out of proportion."
Discussion. It is important to recognize that there is no majority opinion in this case, only
a plurality. As such, it is interesting to read the dissenting and concurring opinions and
see what the various justices agree and disagree about.
325 Near v. State of Minnesota ex rel. Olsen
Near v. State of Minnesota ex rel. Olsen
Citation. 283 U.S. 697 (1931).
Brief Fact Summary. The Petitioner, Near (Petitioner), was prohibited from producing
any newspaper because he published an article criticizing the local police. A 1927 state
law prohibited such publishing activity that was described as "malicious, scandalous and
defamatory."
Synopsis of Rule of Law. The government may not censor expression in advance either
legislatively or judicially.
Facts. In 1927, Minnesota passed a law prohibiting the publication of any newspaper,
periodical or magazine that was "malicious, scandalous and defamatory or obscene, lewd
and lascivious." Anyone who distributed such materials was prohibited from continuing
production and was charged with creating a public nuisance. In late 1927, the Petitioner
published several article in The Saturday Press what indicated that the local law
enforcement was not "energetically" pursuing the head of the local mob. The Petitioner
was then forced to stop production, as he was convicted of producing a public nuisance.
Issue. Is a court order enjoining a publisher from producing a magazine a prior restraint
in violation of the Fourteenth Amendment rights of freedom of the press?
Held. Yes. To allow the court to enjoin the activity without providing the publisher an
opportunity to show that the matter is true, is a step towards total censorship of the press.
Discussion. The press is allowed to publish articles that may criticize the government or
other actors, as long there is an element of truth to the publication. The government
cannot prevent unflattering reports from being circulated simply because it looks bad. In
other words prior restraints are not appropriate. However, if the item relates to sensitive
issues such as national security or certain wartime efforts, the government may impose a
communication blackout.
326 New York Times Company v. United States
New York Times Company v. United States
Citation. 403 U.S. 713 (1971).
Brief Fact Summary. The Petitioner, the New York Times (Petitioner), printed an
excerpt from a top secret Defense Department document. The Respondent, the United
States (Respondent), sought to enjoin further publications on the grounds that national
security was jeopardized.
Synopsis of Rule of Law. There is a heavy presumption against the validity of any
system of prior restraint of expression that can only be overcome by a significant
governmental justification.
Facts. The Petitioner published excerpts from top-secret Defense Department documents
that chronicled some of the decision-making that occurred during the Vietnam War. The
documents were referred to as the Pentagon Papers. The Respondent immediately sought
an injunction from further publications citing the compromise of national security as
justification for the restraint.
Issue. Is this request for a prior restraint constitutional?
Held. No. The government failed to show sufficient justification for this restraint on
expression by the press.
Dissent. Prior restraints are appropriate because of the sensitive nature of the reports.
1 • Justice Warren Burger (J. Burger): The danger to national security is a
determination that the Executive branch makes. It is not for the judiciary
to overrule this decision.
2 • Justice Harry Blackmun (J. Blackmun): A balancing test should be
developed for such circumstances that weighs the right of the press against
the Executive considerations.
Concurrence. The government has no right to prohibit the reporting of news.

1 • Justice Hugo Black (J. Black): The press must be free to publish the
news without censorship, injunctions or prior restraints.
2 • Justice William Douglas (J. Douglas): The purpose of the First
Amendment of the United States Constitution (Constitution) is to prevent
the government from suppressing embarrassing information. Secrecy in
the government is anti-democratic.
3 • Justice William Brennan (J. Brennan): Prior restraint is allowed when the
nation is at war. But, even then, it may not rest on the conclusion that the
release of information "may or might" compromise security.
327 New York Times Company v. United States
1 • Justice Potter Stewart (J. Stewart): Some of the documents probably
should be censored, but there is no evidence that harm will result to the
nation if the reports are published.
2 • Justice Byron White (J. White): The government has not met its burden
of proof. It might be able to pursue other avenues to prevent future
publications.
3 • Justice Thurgood Marshall (J. Marshall): It would be a disruption of the
separation of powers for the courts to prohibit activities that the Congress
has not.
Discussion. The majority simply relies on the holdings of the lower courts which prohibit
governmental censorship unless the information will compromise national security at a
time of war.
328 Nebraska Press Association v. Stuart
Nebraska Press Association v. Stuart
Citation. 427 U.S. 539 (1976).
Brief Fact Summary. The Respondent, Stuart (Respondent), ordered a pretrial gag order
on all press coverage of a murder trial.
Synopsis of Rule of Law. Gag orders are constitutional only when there is clear and
present danger that pretrial publicity would threaten a fair trial, alternative measures are
inadequate and an injunction would protect the accused.
Facts. The Respondent is a State District Court Judge who ordered the press to not report
any of the accounts of confessions or facts that were "strongly implicative" in a murder
trial.
Issue. Is this gag order violative of the constitutional guarantee of freedom of the press?
Held. Yes. The government has failed to meet the burden of showing that the trial will
definitely be compromised by the public dissemination of pretrial proceedings.
Discussion. There must be a balance between the rights of the press to inform the public
and the individual's right to a fair trial. Pretrial coverage will influence the public
perception of the evidence, but there are other procedural safeguards to protect a
defendant's rights.
329 Alexander v. United States
Alexander v. United States
Citation. 509 U.S. 544 (1993).
Brief Fact Summary. The Petitioner, Alexander (Petitioner), owned adult bookstores
throughout the state. He was convicted of selling obscene pornographic tapes and
racketeering. The Respondent, the United States (Respondent), ordered him to forfeit all
of his businesses.
Synopsis of Rule of Law. A prior restraint is an administrative or judicial order
forbidding certain communications before they occur.
Facts. The Petitioner owned 13 adult bookstores throughout Minnesota. He was
convicted on 17 obscenity counts and 3 RICO violations. The obscenity convictions were
based on the sale of 4 magazines and 3 videotapes. He was sentence to 6 years in prison,
fined $100,000 and ordered to pay the cost of trial and incarceration for the obscenity
counts. In addition, he was ordered to forfeit his businesses and nearly $9 million in
profits.
Issue. Is the court order to shut down the adult bookstores an unconstitutional prior
restraint on speech?
Held. No. The Supreme Court of the United States (Supreme Court) rejected the
argument that the sentence violated Petitioner's First Amendment constitutional rights,
but remanded for reconsideration under the Eighth Amendment of the United States
1 • The items were seized as punishment not a prior restraint.
Dissent. This is an authorization to suppress disfavored speech.

Discussion. The majority emphasizes the definition of a prior restraint to distinguish it
from a subsequent judgment. The stores were shut down because they were related to
past wrongdoings. The Petitioner is free to start another adult bookstore chain once he
serves his sentence. So, this action is not a content-based restraint.
330 Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton
Watchtower Bible and Tract Society of New York, Inc. v. Village of
Stratton
Citation. 536 U.S. 150 (2002)
Brief Fact Summary. A town ordinance required a canvasser to obtain an ordinance
prior to going door to door for any cause.
Synopsis of Rule of Law. The scope of the ordinance is too broad because the village
never constrained its application only to "commercial activities and the solicitation of
funds" which "would have been tailored to the Respondent's interest in protecting the
privacy of its residents and preventing fraud."
Facts. Petitioner 1, Watchtower Bible and Tract Society of New York, Inc. ("Petitioner
1"), coordinates the preaching activities of the Jehovah's witnesses throughout the United
States. Petitioner 2, the Wellsville, Ohio, Congregation of Jehovah's Witnesses, Inc.
("Petitioner 2"), supervises various Jehovah's witnesses in a portion of Ohio including the
Respondent, Village of Stratton (the "Respondent"). Section 116.01 of the ordinance
forbids " 'canvassers' and others from 'going in and upon' private residential property for
the purpose of promoting any 'cause' without first having obtained a permit pursuant to §
116.03." Section 116.03 requires the acquisition of a "Solicitation Permit" from the
mayor. The permit was free and all the registrant must do is fill out a form. Upon being
issued a permit, its recipient must carry it around to show it to a police officer or a
resident if asked. A procedure can be followed to ban solicitation on certain property,
despite the fact someone has a permit.
Issue. Does "a village ordinance making it a misdemeanor to engage in door-to-door
advocacy without first registering with the mayor and receiving a permit violate[ ] the
First Amendment"?
Held. Justice John Paul Stevens ("J. Stevens") first discussed various themes gleamed
from past cases concerning the Jehovah's witnesses. First, the "value of the speech
involved". Specifically, the historical value of "door-to-door canvassing and
pamphleteering as vehicles for the dissemination of ideas." The court placed the hand
distribution of religious propaganda on the same plateau as "worship in the churches and
preaching from the pulpits." Second, the interest the towns attempting to promulgate
regulations had in "some form of regulation" especially when money donations are
sought. Third and finally, J. Stevens recognized the importance of door-to-door
canvassing to "little people."
1 • J. Stevens recognized and accepted three interests the Respondents argued
were served by their ordinance - "the prevention of fraud, the prevention of
crime, and the protection of residents' privacy." However, J. Stevens also
stressed the importance of the amount of speech covered by the ordinance and
"whether there is an appropriate balance between the affected speech and the
governmental interests that the ordinance purports to serve." The majority
331 Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton
1 found that the scope of the ordinance is too broad because the village never
constrained its application to "commercial activities and the solicitation of
funds" which "would have been tailored to the Respondent's interest in
protecting the privacy of its residents and preventing fraud." Instead, the
ordinance also had been applied to "noncommercial 'canvassers' " promoting a
variety of "causes," both religious and political included.
2 • The court criticized the ordinance because "a citizen must first inform the
government of her desire to speak to her neighbors and then obtain a permit to
do so." It then recognized three unacceptable effects of the ordinance. First,
the fact that anonymity was not preserved. Second, the imposition of an
"objective burden on some speech of citizens holding religious or patriotic
views." Third, a large amount of spontaneous speech is banned by the
ordinance.
3 • The court then addressed and discounted two other purposes of the
ordinance put forth by the Respondent – the privacy of the residence and the
prevention of fraud.
Dissent. Judge William Rehnquist ("J. Rehnquist") filed a dissenting opinion stressing
how canvassers are annoying, and how burglars and other criminals including murderers
often time pose as canvassers. J. Rehnquist argued "a permit requirement for door-to-
door canvassers, which gives no discretion to the issuing authority, is constitutional." J.
Rehnquist additionally argued that nothing more than intermediate scrutiny should be
applied to the ordinance.
Discussion. It is interesting to recognize how the dispute in this matter evolved around
what applicable standard of review should be applied. The dissent argued that nothing
more than intermediate scrutiny applies, implying that the majority applied something
more.
332 Thomas And Windy Hemp Development Board v. Chicago Park District
Thomas And Windy Hemp Development Board v. Chicago Park
District
Brief Fact Summary. A city agency in charge of running certain public places, adopted
an ordinance requiring anybody who wished to assemble in a park to obtain a permit
before doing to.
Synopsis of Rule of Law. [Freedman] does not apply where the "licensing scheme at
issue [ ] is not subject-matter censorship but content-neutral time, place, and manner
regulation of the use of a public forum."
Facts. The Respondent, Chicago Park District (the "Respondent"), is in charge of running
public parks and public property in Chicago. The Respondent enacted an ordinance
which obligated an individual to obtain a permit prior to " 'conduct[ing] a public
assembly, parade, picnic, or other event involving more than fifty individuals,' or engage
in an activity such as 'creat[ing] or emit[ting] any Amplified Sound.' " Applications for
the permits were be processed in the order they were received, and the Respondent had
14 days to decide whether to grant or deny the permit. This period can be extended an
additional 14 days by written notice. There were 13 enumerated grounds in the ordinance
that a permit could be denied under. If a permit is rejected, the Respondent must specify
why, and propose ways to cure any defects. If a permit is rejected because a prior
application for the same time or place was previously accepted, suggestions must be
made for a substitute time and/or place. An appeal is available within seven days of
rejection of an Application, to the General Superintendent of the Park District (the
"Superintendent"). The Superintendent has seven days to rule on the appeal. The
Petitioners, Thomas and Windy City Hemp Development Board (the "Petitioners"), have
applied several times to the Respondent to hold rallies "advocating the legalization of
marijuana". The Respondent has granted certain of the Petitioners permits, but denied
others. The Petitioners filed suit in district court alleging the ordinance was
unconstitutional on its face.
Issue. "[W]hether a municipal park ordinance requiring individuals to obtain a permit
before conducting large-scale events must, consistent with the First Amendment, contain
the procedural safeguards described in [Freedman v. Maryland]?
Held. Justice Antonin Scalia ("J. Scalia"), wrote for the majority and first discussed how
the First Amendement "prohibits a wide assortment of government restraints upon
expression, but the core abuse against which it was directed was the scheme of licensing
laws implemented by the monarch and Parliament to contain the 'evils of the printing
press in 16th- and 17-century England.' " J. Scalia then discussed [Freedman v.
Maryland], which required a Board of Censors (the "Board") to review a film prior to its
showing anywhere in the state. The Board could reject certain films that satisfied certain
criteria. The Supreme Court in [Freedman] observed this scheme "presents peculiar
dangers to constitutionally protected speech. [T]he censor's business is to censor," and a
333 Thomas And Windy Hemp Development Board v. Chicago Park District
licensing body likely will overestimate the dangers of controversial speech when
determining, without regard to the film's actual effect on an audience, whether speech is
likely 'to incite' or to 'corrupt [the] morals.' " In response, the [Freedman] court held that
any procedure to license films must contain certain procedural safeguards including "(1)
any restraint prior to judicial review can be imposed only for a specified brief period
during which the status quo must be maintained; (2) expeditious judicial review of that
decision must be available; and (3) the censor must bear the burden of going to court to
suppress the speech and must bear the burden of proof once in court."
1 • The court found that [Freedman] did not apply here because the "licensing
scheme at issue here was not subject-matter censorship but content-neutral
time, place, and manner regulation of the use of a public forum." The
ordinance did not grant the Respondent the ability to make judgments about
the content of the speech. None of the 13 grounds for denying a permit
concerned what the seeker of a permit says. Further, the ordinance was not
concerned at all with communicative activity. Instead, only with "all activity
conducted in a public park." The purpose of the ordinance was to "coordinate
multiple uses of limited space, to assure preservation of the park facilities, to
prevent uses that are dangerous, unlawful, or impermissible under the Park
District's rules, and to assure financial accountability for damage caused by
the event."
2 • J. Scalia recognized that even content neutral, time, place and manner
restrictions can violate the First Amendment if the official in charge of
granting the license had too much discretion. To ensure this does not occur,
the court had required "that a time, place, and manner regulation contain
adequate standards to guide the official's decision and render it subject to
effective judicial review." J. Scalia then found that this ordinance did not
grant the licensing official too much power because the permit may only be
denied for the objective and specific reasons enumerated in the ordinance. The
licensing decision was not left "to the whim of the administrator".
Additionally, that the application must be accepted or rejected within 28 days
and if the application is denied, the reasons for the denial must be specified.
Discussion. This case offers an interesting discussion about the differences between
"content-neutral time, place, and manner restrictions" and "subject-matter censorship."
334 City of Littleton, Colorado v. Z.J. Gifts D-4, L.L.C.
City of Littleton, Colorado v. Z.J. Gifts D-4, L.L.C.
Citation. 541 U.S. 774 (2004)
Brief Fact Summary. A Colorado ordinance required certain adult oriented stores to
obtain permits prior to going into business.
Synopsis of Rule of Law. "Colorado's ordinary judicial review procedures suffice as
long as the courts remain sensitive to the need to prevent First Amendment harms and
administer those procedures accordingly."
Facts. The Petitioner, City of Littleton, Colorado (the "Petitioner"), enacted an ordinance
requiring certain adult oriented business to acquire "adult business licenses". First, the
ordinance provides a definition of "adult business". Second, it requires anyone applying
for a license to provide certain information about the business. Third, all applicable
zoning laws including those specific to adult business must be followed. Fourth, there are
eight enumerated reasons why a license can be denied. Fifth, the ordinance requires the
city to make a decision within about 40 days as to whether the license should be issued.
Finally, a final decision is appealable to the state district court. The Respondent, Z.J.
Gifts D-4, L.L.C. (the "Respondent"), opened a store in the business of selling "adult
books". The store was opened in an area not zoned for adult oriented businesses. The
Respondent brought this lawsuit and argued the Petitioner's ordinance was
unconstitutional on its face.
Issue. Whether "a city's 'adult business' licensing ordinance [ ] meets the First
Amendment's requirement that such a licensing scheme assure prompt judicial review of
an administrative decision denying a license"?
Held. Yes, it meets the requirement. Justice Stephen Breyer ("J. Breyer"), writing for the
majority, first found "[a] delay in issuing a judicial decision, no less than a delay in
obtaining access to a court, can prevent a license from being 'issued within a reasonable
period of time.' "
1 • Second, J. Breyer found for various reasons "Colorado's ordinary judicial
review procedures suffice as long as the courts remain sensitive to the need to
prevent First Amendment harms and administer those procedures
accordingly." First, "ordinary court procedural rules and practices … provide
reviewing courts with judicial tools sufficient to avoid delay-related First
Amendment harm." Second, judges in Colorado will work to ensure that there
are no serious threats of delay. Third, this case is distinguishable from
[Freedman], which considered the creation of a Board of Censors to review
movies before they were released. J. Breyer observed that the standards that
the movies were measured against were subjective, and that if the censorship
power was exercised there would be complete censorship. To the contrary, the
standards that apply to the licenses here were "reasonably objective,
nondiscretionary criteria unrelated to the content of the expressive materials
335 City of Littleton, Colorado v. Z.J. Gifts D-4, L.L.C.
1 that an adult business may sell or display." Further, the eight enumerated
criteria are "simple enough to apply and their application simple enough to
review that their use is unlikely in practice to suppress totally the presence of
any specific item of adult material in the Littleton community." Fourth and
finally, the specific judicial review safeguards do not have to be in the city
ordinance containing the licensing scheme.
2 • J. Breyer also observed "[w]here (as here and as in FW/PBS) the regulation
simply conditions the operation of an adult business on compliance with
neutral and nondiscretionary criteria, and does not seek to censor content, an
adult business is not entitled to an unusually speedy judicial decision of the
Freedman type." The court found the statute withstands a facial challenge, but
specifically recognized challenges still can be brought based on its
application, if there is undue delay.
Discussion. It is interesting to read this case alongside [Thomas and Windy City Hemp
Development Board v. Chicago Park District] to see how the Supreme Court of the
United States ("Supreme Court") applies [Freedman v. Maryland] in two unique factual
situations.
336 United States v. National Treasury Employees Union
United States v. National Treasury Employees Union
Citation. 513 U.S. 454 (1995).
Brief Fact Summary. Congress passed a law prohibiting federal employees from being
paid for making speeches or writing articles.
Synopsis of Rule of Law. The government may not forbid all employees from being paid
for speech when the speech is unrelated to their jobs, just those in high ranking positions.
Facts. All federal employees were prohibited from collecting compensation for giving
speeches or writing articles even if the subject was not related to their jobs.
Issue. Does this prohibition on compensation for speeches infringe upon the First
Amendment Constitutional rights of federal employees?
Held. Yes. The honoraria ban burdens the employee's right to free speech. The
employees seek compensation for their expressions not as government employees, but as
citizens. Because this ban focuses only on speech it puts a significant burden on the
employee's 1st Amendment rights. The employee is forced to choose between his job and
expressing his thoughts. The ban in effect stops speech.
Dissent. This ban on honoraria is consistent with the First Amendment of the United
States Constitution (Constitution) and should not apply only to those above a certain pay
grade.
Discussion. The law does not prohibit any speech, but by prohibiting compensation for
speech, the Congress has discouraged employees from sharing their thoughts. On the
other hand, it is important to ban compensation when it could appear that the speaker, in
his official capacity, has been improperly influenced by the compensation or has used his
position to profit.
337 West Virginia State Board of Education v. Barnette
West Virginia State Board of Education v. Barnette
Citation. 319 U.S. 624 (1943).
Brief Fact Summary. The Respondent, Barnette (Respondent), is a Jehovah's Witness
who refused to pledge allegiance the United States flag while in public school. According
to the Petitioner, the West Virginia State Board of Education's (Petitioner), rule, the
Respondent was expelled from school and charged with juvenile delinquency.
Synopsis of Rule of Law. The right to not speak is as equally protected under the First
Amendment of the United States Constitution (Constitution) as the right to free speech.
Facts. In 1942, the Petitioner adopted a rule that forced all teachers and pupils to pledge
allegiance the nation's flag each day. If the student refused he would be found
insubordinate and expelled from school. He would not be readmitted to school until he
conformed. Meanwhile, he was considered to be "unlawfully absent" and subject to
delinquency hearings. The parents could be fined $50 per day with a jail term not to
exceed 30 days. The Respondent asked for an exception for all Jehovah's Witnesses
because this pledge goes against their religious belief. But he was denied an exception.
Issue. Does this rule compelling a pledge violate the First Amendment of the
Constitution?
Held. Yes. Compelling a salute to the flag infringes upon an individual's intellect and
right to choose their own beliefs.
Dissent. This legislation is well within the states purview to encourage good citizenship.
Discussion. The majority focuses on the right of persons to choose beliefs and act
accordingly. As long as the actions do not present a clear and present danger of the kind
the state is allowed to prevent, then the Constitution encourages diversity of thought and
belief. The state has not power to mandate allegiance in hopes that it will encourage
patriotism. This is something the citizens will choose or not.
338 McIntyre v. Ohio Elections Commission
McIntyre v. Ohio Elections Commission
Citation. 514 U.S. 334 (1995).
Brief Fact Summary. The Petitioner, McIntyre (Petitioner), distributed leaflets in
opposition to a school tax levy. The leaflets did not specifically indicate who the author
was in violation of Ohio election law. So, the Petitioner was charged with violating the
Ohio code.
Synopsis of Rule of Law. Political speech is protected. Laws requiring disclosure of the
identity of the author of political speech are subject to strict scrutiny.
Facts. The Ohio code provides that no one shall write, print or otherwise distribute
materials designed to promote the election or defeat of a candidate or issue without
putting their name and residence or business address on the material. The Petitioner
distributed leaflets at a school tax levy meeting that opposed the tax levy. Some of the
handouts indicated that Petitioner was the author, but others did not. The Petitioner was
fined $100 for violating the Ohio code.
Issue. Does the Ohio law prohibiting the distribution of anonymous campaign literature
violate the First Amendment of the United States Constitution (Constitution)?
Held. Yes. No form of speech is entitled to greater protection than that of Petitioner.
1 • Ohio has not provided sufficient evidence that the identification of the
author will help prevent fraud. There are less restrictive alternatives
available.
Dissent. Anonymous writings are not an honorable tradition of advocacy and dissent.
Concurrence. Agrees with the result, but not the reasoning. The analysis should focus on
the original intent of the framers and their own actions. The prime example of
anonymous political writing can be found in the original Federalist Papers that supported
independence.
Discussion. The value of anonymous speech has been recognized throughout history.
Often an author will not sign or provide a pseudonym in order to have the idea heard
before it is judged. The identity of an author can sway public opinion and reception to the
idea. By not allowing anonymity, the state is suppressing speech that would otherwise
occur.
339 Buckley v. American Constitutional Law Foundation, Inc.
Buckley v. American Constitutional Law Foundation, Inc.
Citation. 525 U.S. 182 (1999).
Brief Fact Summary. Colorado requires that petition circulator's wear a badge and that
the names, addresses and amounts paid to all circulators be reported.
Synopsis of Rule of Law. Protected political speech includes the freedom to remain
anonymous while supporting a particular cause.
Facts. Citizens may get initiatives on the elections ballots by having persons sign a
petition. In order to consider a petition valid, Colorado requires that all persons asking for
signatures wear a name badge and that their address and amount received be reported to
the state.
Issue. Do the Colorado state requirements violate the First Amendment of the United
States Constitution (Constitution)?
Held. Yes. Affirm Court of Appeals
1 • The badge requirement discourages participation in the petition
circulation process by forcing name identification without just cause.
2 • Listing paid circulators forces paid circulators to surrender the
anonymity enjoyed by volunteer counterparts.
Dissent. The disclosure of circulators' addresses and payment amounts slightly infringes
upon the First Amendment of the Constitution and should be held constitutional.
Concurrence. Requiring the wearing name badges to identify the circulators is an action
subject to strict scrutiny.
Discussion. This kind of requirement is an even stricter restraint on speech than McIntyre
because the circulators are required to discuss the issue at length in order to gain
signatures. By providing the identity, the person is less likely to participate in the process.
Therefore, this operates as a restraint on free speech.
340 Rust v. Sullivan
Rust v. Sullivan
Citation. 500 U.S. 173 (1991).
Brief Fact Summary. The Respondent, Sullivan (Respondent), instituted regulations that
prohibited federal monies to be used to educate Medicaid recipients about abortion as a
family planning option.
Synopsis of Rule of Law. The government can selectively fund programs without
violating the United States Constitution (Constitution), if it believes the funded programs
encourage certain activities it believes are in the public interest.
Facts. In 1988, the Respondent promulgated new regulations that prohibited federal
monies from being used to counsel Medicaid recipients about abortion as a method of
family planning.
Issue. Does this restriction violate the First Amendment of the Constitution by
prohibiting certain content-based discussions from occurring?
1 • Does the restriction condition the receipt of a benefit on the
relinquishment of a constitutional right?
Held. No. The government may choose to fund one program at the exclusion of another.
The legislature's decision not to subsidize the exercise of a fundamental right, does not
infringe upon the right.
1 • No. The regulations do not require recipients to forfeit rights. Instead,
they mandate that the activities be kept separate and distinct from the
funded program.
Dissent. These are unconstitutional content-based regulations of speech that place

obstacles in the way of a woman's freedom to choose abortion as a means of family
planning.
Discussion. These decisions are not content-based restrictions on speech. Instead, the
focus is on the scope of the program in question. Family planning counseling does not, by
definition, include abortion. By this same reasoning, prenatal care discussions are also
prohibited in these programs.
341 Legal Services Corp. v. Velazquez
Legal Services Corp. v. Velazquez
Citation. 531 U.S. 533 (2001)
Brief Fact Summary. A congressional statute creating a non-profit corporation to
provide legal representation to the indigent in non-criminal cases, disallowed the
attorneys in its employ to represent clients making certain arguments about the federal
welfare laws.
Synopsis of Rule of Law. "Where private speech is involved, even Congress' antecedent
funding decision cannot be aimed at the suppression of ideas thought inimical to the
Government's own interest."
Facts. The Legal Services Corporation Act (the "Act"), promulgated by Congress in
1974, created the Petitioner, the Legal Services Corporation (the "Petitioner") a non-
profit corporation. The Petitioner's mission was to give financial support to various
grantees that provide non-criminal legal representation to indigent individuals. Various
local grantee organizations receive funds from the Petitioner and from other public or
private sources, and the grantee organizations hire and supervise the lawyers that provide
free legal services to the indigent. The relevant portion of section 504(a)(16), the
provision being challenged, excluded the Petitioner's grantees' representation in cases,
which in the context of a welfare action "involve an effort to amend or otherwise
challenge existing law in effect on the date of the initiation of the representation." This
provision has been interpreted to "prevent[ ] an attorney from arguing to a court that a
state statute conflicts with a federal statute or that either a state or federal statute by its
terms or in its application is violative of the United States Constitution." An individual,
however, can obtain representation in a welfare action if they are challenging a welfare
agency determination "of benefit ineligibility under interpretations of existing law."
Issue. Whether the provision of the Act forbidding representation by attorney's employed
by the Petitioner's grantees from providing legal services in cases where a challenge to or
an amendment of an existing welfare law is at issue, violates the First Amendment rights
of the Respondents?
Held. Justice Anthony Kennedy ("J. Kennedy") authored the majority opinion. J.
Kennedy recognized that both parties rely upon [Rust v. Sullivan]. In [Rust], Congress
began a program whereby doctors were granted subsidies to advise their patients on
various nuances of family planning. Congress refused to allow doctors to discuss
abortion, because they did not feel it was an appropriate family planning topic. The
constitutionality of this program was challenged by recipients of funds under Title X of
the Public Health Service Act (the "Act"). They argued "the regulations constituted
impermissible viewpoint discrimination favoring an antiabortion position over a
proabortion approach in the sphere of family planning." The Supreme Court of the United
States (the "Supreme Court") upheld the law "reasoning that Congress had not
discriminated against viewpoints on abortion, but had 'merely chosen to fund one activity
to the exclusion of the other.' " The scope of the federal program did not include abortion
counseling, and the federal government's ban on discussing abortion ensured the limits of
the program were respected. The Supreme Court in [Rust] did not specifically state that
the doctor's counseling activities constituted governmental speech, but later decisions
specified this.
1 • These later decisions have held "viewpoint-based funding decisions can be
sustained in instances in which the government is itself the speaker". They
also can be sustained in cases like "[Rust] in which the government 'used
private speakers to transmit specific information pertaining to its own
program.' " The rationale for this view was that "[w]hen the government
speaks, for instance to promote its own policies or to advance a particular
idea, it is, in the end, accountable to the electorate and the political process for
its advocacy. If the citizenry objects, newly elected officials later could
espouse some different or contrary position." J. Breyer also observed "[i]t
does not follow ... that viewpoint-based restrictions are proper when the
[government] does not itself speak or subsidize transmittal of a message it
favors but instead expends funds to encourage a diversity of views from
private speakers."
2 • Based on the facts here, J. Breyer observed that the Petitioner's program
"was designed to facilitate private speech, not to promote a governmental
message." In the context of §504(a)(16), the lawyers employed and supervised
by the Petitioner's grantees were not the government's speakers. The lawyers
speak for their indigent clients in front of the Welfare Board. The lawyers
representing the Welfare Board are the ones who speak for the government.
The attorney's advice cannot be characterized as governmental speech and as
such this case is distinguishable from [Rust].
3 • J. Breyer further observed "[r]estricting LSC attorneys in advising their
clients and in presenting arguments and analyses to the courts distorts the
legal system by altering the traditional role of the attorneys in much the same
way broadcast systems or student publication networks were changed in the
limited forum cases we have cited. Just as government in those cases could
not elect to use a broadcasting network or a college publication structure in a
regime which prohibits speech necessary to the proper functioning of those
systems, it may not design a subsidy to effect this serious and fundamental
restriction on advocacy of attorneys and the functioning of the judiciary."
Further, J. Breyer recognized that under §504(a)(16) an attorney would be
require to cease representation if "the validity issue becomes apparent during
initial attorney-client consultations or in the midst of litigation proceedings."
Additionally, the Petitioner's attorney "could not advise the courts of serious
questions of statutory validity. Th[is] disability is inconsistent with the
proposition that attorneys should present all the reasonable and well-grounded
arguments necessary for proper resolution of the case." "By seeking to
prohibit the analysis of certain legal issues and to truncate presentation to the
courts, the enactment under review prohibits speech and expression upon
which courts must depend for the proper exercise of the judicial power.
Congress cannot
1 wrest the law from the Constitution which is its source." Further, although a
litigant could obtain other counsel if one of the Petitioner's attorneys had to
withdraw, the individuals involved are indigent, and likely would not be able
to afford other counsel.
2 • The majority concluded "[t]he LSC and the United States, however, in effect
ask us to permit Congress to define the scope of the litigation it funds to
exclude certain vital theories and ideas. The attempted restriction is designed
to insulate the Government's interpretation of the Constitution from judicial
challenge. The Constitution does not permit the Government to confine
litigants and their attorneys in this manner. We must be vigilant when
Congress imposes rules and conditions which in effect insulate its own laws
from legitimate judicial challenge. Where private speech is involved, even
Congress' antecedent funding decision cannot be aimed at the suppression of
ideas thought inimical to the Government's own interest."
Dissent. Justice Antonin Scalia ("J. Scalia") filed a dissenting opinion with which Judge
William Rehnquist ("J. Rehnquist"), Judge Sandra Day O'Connor ("J. O'Connor") and
Judge Clarence Thomas ("J. Thomas") joined. J. Scalia argued that §504(a)(16) does not
directly regulate speech, it only "defines the scope of a federal spending program."
Additionally, §504(a)(16) does not "establish[ ] a public forum nor discriminate [ ] on the
basis of viewpoint." J. Scalia further argued that although the majority acknowledges all
of this, it "applies a novel and unsupportable interpretation of our public-forum
precedents." Instead, J. Scalia and the dissent argued that the Act is a federal subsidy
program, which indirectly restricts speech. The only way speech is abridged is if the
funding mechanism is "manipulated" to have a "coercive effect". Where like here the
spending program is not universal, but limited, it is extremely hard to prove coercion. J.
Scalia observed "[t]he Court has found such selective spending unconstitutionally
coercive only once, when the government created a public forum with the spending
program but then discriminated in distributing funding within the forum on the basis of
viewpoint."
1 • Unlike the majority, J. Scalia and the dissent found [Rust] virtually
indistinguishable in all material respects, and thus controlling. J. Scalia
observed "[t]he provision simply declines to subsidize a certain class of
litigation, and under [Rust] that decision 'does not infringe the right' to bring
such litigation." J. Scalia criticized the private versus governmental speech
argument that the majority made to distinguish [Rust] and the majority's
argument that the welfare funding "restriction seeks to use an existing medium
of expression and to control it ... in ways which distort its usual functioning".
Finally, J. Scalia disparaged the majority's argument that if one of the
Petitioner's attorney's must withdraw, than an indigent individual could not
obtain a replacement attorney.
2 • In conclusion J. Scalia concluded "[t]he LSC subsidy neither prevents
anyone from speaking nor coerces anyone to change speech, and is
indistinguishable in all relevant respects from the subsidy upheld in [Rust]."
Discussion. It is interesting to examine how the majority and dissent construe [Rust] in
entirely different ways.
345 Schenck v. United States
Schenck v. United States
Citation. 249 U.S. 47 (1919).
Brief Fact Summary. The Petitioner, Schenck (Petitioner), distributed mailers that
opposed the draft during World War I.
Synopsis of Rule of Law. When speech presents a clear and present danger of bringing
about harm that Congress has the power to prevent, restrictions on such speech are
constitutional.
Facts. The Petitioner sent mailers to all men that were drafted into the war. The flyer
consisted of 2 pages that implored the draftees to "Assert Your Rights" and standup
against the draft. The Respondent, the United States (Respondent), charged the Petitioner
with conspiracy to violate the Espionage Act of 1917 by encouraging insubordination in
the military.
Issue. Is the Petitioner's expression of his opinion of the draft protected speech under the
First Amendment of the United States Constitution (Constitution)?
Held. No. Because the nation is at war these types of expression encouraging disruption
of wartime activities cannot be tolerated.
Discussion. No actual obstruction of military recruiting resulted from the Petitioner's
actions. However, the circumstance of the times is what makes this unprotected speech. It
was equated to yelling, "Fire!" in a crowded theatre. It was meant to induce panic and
disrupt the security actions of the nation.
346 Frohwerk v. United States
Frohwerk v. United States
Citation. 249 U.S. 204 (1919).
Brief Fact Summary. The Petitioner, Frohwerk (Petitioner), was convicted of attempting
to cause disloyalty, mutiny and refusal of duty in the military of the Respondent, the
United States (Respondent).
Synopsis of Rule of Law. Speech that could incite the audience to react negatively to the
war efforts may be restricted without violating the United States Constitution
(Constitution).
Facts. The Petitioner published 12 articles in his own newspaper that denounced the war
and military action. He was subsequently convicted of violating the Espionage Act of
1917.
Issue. Are Petitioner's First Amendment constitutional rights violated by this conviction?
Held. No. It is possible that this paper was read by those in military service or subject to
service who would react by opposing the war efforts.
Discussion. There does not appear to be enough evidence to show that the articles caused
a negative reaction. But there was enough dissent in the ranks that the Petitioner was
counting on to react to the articles. The analysis here is based on the intent of the speech
rather than its actual effect.
347 Debs v. United States
Debs v. United States
Citation. 249 U.S. 211 (1919).
Brief Fact Summary. The Petitioner, Debs (Petitioner), was found guilty for attempting
to incite insubordination in the military by giving a speech. He was convicted and
sentenced to 10 years on each count.
Synopsis of Rule of Law. Speech is not protected if one purpose of the speech,
incidental or not, is to oppose war efforts.
Facts. The Petitioner gave a number of public speeches in Canton, Ohio opposing the
war. The theme of his speeches was the benefits of a Socialist society. He focused on the
indictments of his 'comrades' for helping others evade the draft and the ill effects of war.
Issue. Does the Petitioner have a protected right to express himself as he did?
Held. No. The Supreme Court of the United States (Supreme Court) sustains the charge
of attempting to obstruct and obstructing the recruiting service of the Respondent, the
United States (Respondent).
Discussion. The decision is based on the analysis of the likelihood or imminence of harm
caused by the speech. Although there appears to be very little evidence of either here, the
Supreme Court believed the danger was very real.
348 Abrams v. United States
Abrams v. United States
Citation. 250 U.S. 616 (1919).
Brief Fact Summary. The Petitioner, Abrams (Petitioner), was convicted of conspiring
with the German government to write and distribute disloyal information about the
Respondent, the United States (Respondent), during World War I.
Synopsis of Rule of Law. Unintended consequences of speech are treated as if the
speaker intended such a reaction.
Facts. The Petitioner published and distributed articles critical of the Respondent
throughout New York City. The articles were published in English and Yiddish to
increase circulation. The Petitioner was born in Russia and claimed to be a rebel who did
not believe in government of any form. Petitioner was charged with using abusive
language about the form of United States government, using language intended to bring
about contempt, scorn, and disrepute of the government, and using language intended to
incite and encourage resistance to the war.
Issue. Can one be held responsible for the unintended consequences of one's speech?
Held. Yes. Prior cases have held this type of speech may be restricted in time of war.
Dissent. Speech may not be restricted unless the speaker actually intended to cause a
disruptive action by the audience. To restrict such speech, is to shut down the
"marketplace of ideas" and free exchange that has been the backbone of our nation's
growth.
Discussion. Although this action was not meant to induce panic and disrupt the security
actions of the nation, it was sufficiently negative in nature to cause such a reaction.
Therefore, it is ruled that the authors knew or should have known that these reactions
would result and so by default intended negativity.
349 Gitlow v. New York
Gitlow v. New York
Citation. 268 U.S. 652 (1925).
Brief Fact Summary. The Petitioner, Gitlow (Petitioner), published a communist
manifesto for distribution in the United States. He was charged with plotting to overthrow
the United States government.
Synopsis of Rule of Law. State statutes are unconstitutional if they are arbitrary and
unreasonable attempts to exercise authority vested in the state to protect public interests.
Facts. The Petitioner was charged with criminal anarchy because he was an advocate of
socialist reform in the United States. The Petitioner is a member of the Left Wing Section
of the Socialist Party. He served as the business manager for the paper that was run by the
organization. In 1919 he published the group's manifesto and prepared for widespread
distribution from the New York City headquarters.
Issue. Did the statute prohibiting such activity deprive the Petitioner of his First
Amendment constitutional right to freedom of expression?
Held. No. The current statute is not an unreasonable or arbitrary means of exercising the
state's police power. It is within the state's power to prevent the disturbance of the peace
and regulate speech that may incite crime even if the threat of such action is not
immediate.
Dissent. A state may not prohibit speech unless it presents a clear and present danger to
the public interest.
Discussion. Freedom of speech and press do not confer an absolute right to publish or
speak without being held responsible for the results of such speech. The state may
regulate to protect its interests in general welfare of its citizens.
350 Whitney v. California
Whitney v. California
Citation. 274 U.S. 357 (1927).
Brief Fact Summary. The Petitioner, Whitney (Petitioner), was convicted of organizing
a group that would use unlawful acts of force, violence and terrorism to accomplish
industrial and political change.
Synopsis of Rule of Law. A state may prohibit the organizing of an association that
advocates the commission of crimes or unlawful acts of force to achieve goals that are a
danger to general public interest.
Facts. The Petitioner was originally a member of the national socialist party. She
attended a conference of this group in Chicago, 1919. At that time, the group split into 2
distinct organizations. The Petitioner then became a member of the Communist Labor
Party of America, which was headquartered in Oakland, California. The Petitioner was an
active participant in the group's activities and claims she did not intend for the group to
be used as an instrument of terrorism. Regardless, she was convicted of criminal
syndicalism under California statute.
Issue. Does the Respondent, the state of California's (Respondent) Syndicalism Act (the
Act) violate the First Amendment rights of its citizens?
Held. No. The Act is not unreasonable or arbitrary exercise of police power. The state
was legitimately trying to protect the citizens from becoming victims of a criminal
conspiracy. Being a member of an organization that advocates, teaches and aids terrorism
in the name of political change is expressive conduct that poses a significant danger to
the public safety and welfare warranting governmental restraint.
Concurrence. No danger from speech can be deemed clear and present unless the harm
will occur before there is opportunity to discuss the speech. Speech should only be
restricted in the very limited instances of dire emergency.
Discussion. The Supreme Court of the United States (Supreme Court) provides complete
deference to the legislative intent of such statutes and assumes a legitimate purpose. Each
person has the right to free speech, but this is not an absolute right. The state may limit
speech that endangers the organization of the government and disturbs the public welfare.
351 Dennis v. United States
Dennis v. United States
Citation. 341 U.S. 494 (1951).
Brief Fact Summary. The Petitioner, Dennis (Petitioner), was charged with violating the
Smith Act (the Act) by organizing the Communist Party of America.
Synopsis of Rule of Law. Immediate immanency is not required for a showing of clear
and present danger.
Facts. The Act makes it unlawful for a person to knowingly or willfully advocate
overthrowing or destroying the Respondent, United States (Respondent), or to print,
publish or distribute printed material advocating such an overthrow. It is also unlawful to
organize or help organize a group to overthrow the Respondent. The Petitioner was
charged with organizing the Communist Party of America and knowingly and willingly
advocating the destruction of the Respondent.
Issue. Does the Act violate the 1st Amendment?
Held. No. The Act does not inherently violate the First Amendment of the United States
Constitution (Constitution) either as applied or construed in this case.
Dissent. The Act violates the First Amendment of the Constitution.
1 • Justice Hugo Black (J. Black): The clear and present danger test does no
more than set a minimum compulsion of the Bill of Rights.
2 • Justice William Douglas (J. Douglas): There is no evidence that there is
clear and present danger of harm from the organization of this political
group.
Concurrence. Deference must be given to the legislature and its intent in passing such a
law. The courts are not justified in second-guessing or limiting the power of the
legislature.
Discussion. The purpose of the law is to protect the government from violent overthrows,
which is well within the purview of Congress to legislate. The government is not
rendered helpless by the Constitution to defend itself from revolution.
352 Brandenburg v. Ohio
Brandenburg v. Ohio
Citation. 395 U.S. 444 (1969).
Brief Fact Summary. The Petitioner, Brandenburg (Petitioner), a Ku Klux Klan leader,
was convicted of advocating unlawful activity in violation of the Respondent, Ohio's
(Respondent), Criminal Syndicalism statute.
Synopsis of Rule of Law. Speech will be protected as long as it does not incite imminent
harm to others.
Facts. The Petitioner invited a news reporter and film crew to join him at a Klan rally in
rural Hamilton County. A film shows the Petitioner speaking at the rally and the
existence of pistols, rifles and shotguns at the rally. A second film showed a rally with
participants gathered around a large burning cross, with the Petitioner making references
to "revengeance."
Issue. In the absence of an immediate threat of harm, is this restriction a violation of the
Petitioner's First Amendment constitutional rights?
Held. Yes. On its face, this statute prohibits assembly with others to advocate a described
action.
Discussion. A conviction for incitement will be upheld only if there is (1) imminent
harm; (2) a likelihood of producing illegal action and (3) an intent to cause imminent
illegality.
353 Chaplinsky v. New Hampshire
Chaplinsky v. New Hampshire
Citation. 315 U.S. 568 (1941).
Brief Fact Summary. The Petitioner, Chaplinsky (Petitioner), was arrested for yelling
offensive words to a city official while on the street.
Synopsis of Rule of Law. "Fighting words" are an unprotected form of speech.
Facts. The Petitioner was distributing literature about his religious sect one afternoon on
a street corner. Locals complained that the Petitioner was denouncing all religion as a
"racket." Fearing a riot would ensue, a police officer escorted the Petitioner to the local
police station. On the way there, the Petitioner encounter the City Marshal and declared
that he was a, "God damned racketeer" and "a damned Fascist." The Petitioner was
charged with violating state law that made it a crime to offend or annoy another while on
a public street.
Issue. Does this law infringe upon Petitioner's First Amendment constitutional rights?
Held. No. The statute bars words that are likely to cause a breach of the peace. This was
narrowly drawn to punish specific conduct within the state power to control.
Discussion. Fighting words include any situation likely to cause a violent response
against the speaker and where the insult is likely to inflict immediate emotional harm.
354 Gooding v. Wilson
Gooding v. Wilson
Citation. 405 U.S. 518 (1972).
Brief Fact Summary. The Appellee, Wilson (Appellee), was convicted of using
opprobrious words and abusive language towards police officers.
Synopsis of Rule of Law. A statute must be carefully drawn and construed to punish
only unprotected speech and not be applied to protected expression.
Facts. The Appellee was convicted of using abusive language towards another when he
made statements such as "You son of a bitch, I'll choke you to death." "If you put your
hands on me again I'll cut you to pieces." At the time these comments were made the
Appellee was being moved away from an army induction center where he was protesting
the war.
Issue. Is the Georgia law overly broad and unconstitutional?
Held. Yes. The definitions of the words used in the statute include non-fighting words as
well as fighting words. Therefore, this statute is overly broad and unconstitutional as
written and applied.
Dissent. The statute is constitutional.
1 • Justice Warren Burger (J. Burger): A statute should be held
unconstitutional on its face not because of its previous application.
2 • Justice Harry Blackmun (J. Blackmun): The statute is not overbroad and
common sense tells us that the name calling engaged in by the Appellee is
a form of "fighting words."
Discussion. The majority relies on the definitions of the words used as a common
dictionary defines them. Because the words include those that are meant to disgrace the
listener or that are simply harsh words, the statute is not narrowly construed.
355 R.A.V. v. City of St. Paul, Minnesota
R.A.V. v. City of St. Paul, Minnesota
Citation. 505 U.S. 377 (1992).
Brief Fact Summary. The Petitioner, R.A.V. (Petitioner), is a juvenile accused of
burning a cross in his neighbor's yard. This was done in violation of a city ordinance that
prohibits such action.
Synopsis of Rule of Law. Prohibition of the use of fighting words must be uniform
across all topics or else the law is an unconstitutional restriction of speech.
Facts. In 1990, the Petitioner and some other juveniles made a cross out of table legs.
They placed it in the yard of a black neighbor and set it on fire. The Respondent, St-Paul,
Minnesota (Respondent), chose to prosecute the Petitioner under the Bias-Motivated
Ordinance, which made it a misdemeanor to place a burning cross on public or private
property, when someone knows or should know that this will result in anger by the
victim.
Issue. Is the ordinance substantially over broad and unconstitutionally content-based?
Held. Yes. The ordinance is unconstitutional on its face. It is a content-based ordinance
that does not fall into an exception of the First Amendment of the United States
Constitution.
Concurrence.
1 • Justice Byron White (J. White): The ordinance is unconstitutional
because it is overbroad.
2 • Justice Harry Blackmun (J. Blackmun): The ordinance goes beyond
regulating fighting words.
Discussion. The ordinance prohibits fighting words only as they apply to cases of racial,
gender or religious harassment. Other fighting words that are directed at political
affiliation or homosexuality are allowed. Because of this prohibition of speech in
particular areas, while others are unrestricted, is why the ordinance is held
unconstitutional.
356 Feiner v. New York
Feiner v. New York
Citation. 340 U.S. 315 (1951).
Brief Fact Summary. The Petitioner, Feiner (Petitioner), was convicted of disorderly
conduct for refusing to stop giving a speech on a public sidewalk once the crowd started
to get a little rowdy.
Synopsis of Rule of Law. When there is clear and present danger of a riot, then the
police may restrict speech.
Facts. The Petitioner was addressing a group of 75 persons gathered on the sidewalk. The
original purpose of the speech was to invite listeners to attend a meeting, but he also
made derogatory marks towards some political officials. Later, a neighbor complained to
the police and 2 units were dispatched to the scene. At that time people were spilling into
the street and disrupting traffic. One officer asked the Petitioner to stop talking, but he
refused several times and was eventually arrested.
Issue. Was the disruption of the speech to prevent a riot constitutional?
Held. Yes. The conviction should not be reversed because there was great potential for a
riot and the Petitioner defied the police request.
Dissent. The facts do not show that a riot was imminent. This is just a convenient way for
police to censor unpopular viewpoints.
Discussion. A person does not have the right to free speech when it will result in a riot.
The Petitioner intended to incite the public with his words. Therefore, the police had a
legitimate interest in maintaining the peace and order of the community that outweighed
the Petitioner's freedom of speech.
357 Beauharnais v. Illinois
Beauharnais v. Illinois
Citation. 343 U.S. 250 (1952).
Brief Fact Summary. The Petitioner, Beauharnais (Petitioner), was convicted of
violating a state statute that outlawed the dissemination of printed racist materials.
Synopsis of Rule of Law. Racist speech is not protected speech. A state may regulate
this type of speech to maintain the peace and order.
Facts. The Respondent, Illinois (Respondent), has a criminal code that expressly
prohibits the publishing or presentation of any racist materials by any person, corporation
or organization. The Petitioner was charged with violating this code when he distributed
leaflets complaining of the "encroachment, harassment and invasion of white people their
property, neighborhoods and persons, by the Negro." He also attached a membership
application for the White Circle League of America, Inc.
Issue. Does the protection of "liberty" in the Due Process Clause prevent a state from
punishing libel towards a group?
Held. No. Libel is in the same class as fighting words. The state had a legitimate purpose
for forbidding the distribution of racist materials.
Dissent. This is a content-based law that should be held to strict scrutiny instead of the
weak rational basis analysis.
Discussion. Libel is regarded as a close relation to fighting words because of the history
of racism experienced by the state. The effects of racist words caused riots and violence
throughout the state. Therefore, the state is justified in prohibiting such activity in order
to maintain the peace.
358 Virginia v. Black
Virginia v. Black
Citation. 538U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003)
Brief Fact Summary. The Respondents, including Black ("Respondents"), challenged
their conviction under a Commonwealth of Virginia statute outlawing cross burning.
Synopsis of Rule of Law. Cross burning can be banned if it is carried out with the intent
to intimidate. However, it is not appropriate to treat "any cross burning as prima facie
evidence of intent to intimidate."
Facts. The Respondents were convicted of violating Virginia's cross-burning statute,
§18.2-423 (1996), which provides, "[i]t shall be unlawful for any person or persons, with
the intent of intimidating any person or group of persons, to burn, or cause to be burned, a
cross on the property of another, a highway or other public place. Any person who shall
violate any provision of this section shall be guilty of a Class 6 felony. Any such burning
of a cross shall be prima facie evidence of an intent to intimidate a person or group of
persons."
Issue.
1 • May a state ban cross burning if it is accompanied by "an intent to intimidate
a person or group of persons"?
2 • Is the Commonwealth of Virginia's statute banning cross burning with "an
intent to intimidate a person or group of persons" violative of the First
Amendment of the United States Constitution ("Constitution")?
Held.
1 • Yes. Justice Sandra Day O'Connor ("J. O'Connor"), writing for the majority
held "a State, consistent with the First Amendment, may ban cross burning
carried out with the intent to intimidate." According to [Chaplinsky] and
[Brandenburg], the government has the power to regulate certain categories of
expression, including fighting words and incitement. Additionally, pursuant to
[Watts v. United States], the First Amendment allows states to ban "true
threats", which "encompass those statements where the speaker means to
communicate a serious expression of an intent to commit an act of unlawful
violence to a particular individual or group of individuals." The speaker does
not need to "actually intend to carry out the threat." Instead, "a prohibition on
true threats protects individuals from the fear of violence and the disruption
that fear engenders, as well as from the possibility that the threatened
violence will occur." Certain cross burning fall into the scope of intimidating
speech. J. O'Connor observes, "[t]he First Amendment permits Virginia to
outlaw cross burnings done with the intent to intimidate because burning a
cross is a particularly virulent form of intimidation. Instead of prohibiting all
1 intimidating messages, Virginia may choose to regulate this subset of
intimidating messages in light of cross burning's long and pernicious history
as a signal of impending violence." Additionally, the majority observed the
holding in [R.A.V. v. City of St. Paul] did not ban all "content-based
discrimination within a proscribable area of speech", but that it "would be
constitutional to ban only a particular type of threat [such as] 'those threats of
violence that are directed at the President.' "
2 • Yes. "The Commonwealth of Virginia's statute treating any cross burning as
prima facie evidence of intent to intimidate renders that statute
unconstitutional in its current form." Here:
the prima facie provision strips away the very reason why a State
may ban cross burning with the intent to intimidate. The provision
permits a jury to convict in every cross burning case in which
defendants exercise their constitutional right not to put on a
defense. And even where a defendant like Black presents a
defense, the provision makes it more likely that the jury will find
an intent to intimidate regardless of the particular facts of the case.
It permits the Commonwealth to arrest, prosecute, and convict a
person based solely on the fact of cross burning itself. As so
interpreted, it would create an unacceptable risk of the suppression
of ideas. The act of burning a cross may mean that a person is
engaging in constitutionally proscribable intimidation. But the
same act may mean only that the person is engaged in core
political speech.
Dissent.
1 • J. Thomas also filed a dissenting opinion and argued "[i]n our culture, cross
burning has almost invariably meant lawlessness and understandably instills
in its victims well--grounded fear of physical violence." As such, an
expressive component should not be imputed to the activity in question.
Concurrence/Dissent.
1 • Justice Antonin Scalia ("J. Scalia") and Justice Clarence Thomas ("J.
Thomas") concurred in part, concurred in the judgment in part, and dissented
in part. The justices agreed with the majority that a state may prohibit cross
burning with the intent to intimidate, but the majority should not have
invalidated the prima-facie-evidence provision on its face.
2 • Justice David Souter ("J. Souter"), Justice Anthony Kennedy ("J. Kennedy")
and Justice Ruth Bader Ginsburg ("J. Ginsburg") filed an opinion concurring
in the judgment in part and dissenting in part. The justices were concerned
that a "content-based proscription of cross burning [ ] may be a subtle effort to
ban not only the intensity of the intimidation cross burning causes when
1 done to threaten, but also the particular message of white supremacy that is
broadcast even by nonthreatening cross burning." The justices did not find the
facts of [R.A.V] analogous to those here, and pursuant to [R.A.V.] no content-
based statute should survive without a high probability that "no official
suppression of ideas is afoot." The justices then argued the prima facia
evidence provision "stands in the way of any finding of such a high
probability here." Because "no [R.A.V.] exception can save the statute as
content based, it can only survive if narrowly tailored to serve a compelling
state interest, a stringent test the statute cannot pass; a content-neutral statute
banning intimidation would achieve the same object without singling out
particular content."
Concurrence.
1 • Justice John Paul Stevens ("J. Stevens") concurred, and concluded cross
burning accompanied with "an intent to intimidate" qualifies as the kind of
threat that the First Amendment does not protect.
Discussion. It is interesting to examine how the justices apply the [R.A.V. v. City of St.
Paul] case to the facts of the instant fscase before them.
361 Roth v. United States
Roth v. United States
Citation. 354 U.S. 476 (1957).
Brief Fact Summary. The Petitioner, Roth (Petitioner), was charged with violating the
federal law against obscenity.
Synopsis of Rule of Law. Obscenity is a type of unprotected speech. Obscene material
deals with sex in a manner that is appealing to the prurient interest.
Facts. The Respondent, the United States (Respondent), passed a law that prohibited the
mailing of "obscene, lewd, or lascivious book, pamphlet, picture, or other publication of
an indecent character." Petitioner was convicted of violating this statute because he
mailed sexually explicit advertisements and a book to requesters.
Issue. Is obscenity protected speech under the First Amendment of the United States
Held. No. The federal law banning such speech is constitutional as long as the
appropriate standard of obscene is used. Obscenity is "not communication and is without
social value."
Dissent. This is punishing speech for the resulting thought that it may invoke, not for the
act itself. Therefore, the law is unconstitutional.
Discussion. All discussions or depictions of sex are not obscene. To be obscene the
material must provide no literary or social value and it must have a tendency to excite
lustful thoughts. This case is most famous for the footnote describing obscenity as "a
shameful or morbid interest in nudity, sex or exertion, and if it foes substantially beyond
customary limits of candor in description or representation of such matter."
362 Paris Adult Theatre v. Slaton
Paris Adult Theatre v. Slaton
Citation. 413 U.S. 49 (1973).
Brief Fact Summary. The Petitioner, Paris Adult Theatre (Petitioner), was convicted of
violating state obscenity laws for showing pornographic films to adults.
Synopsis of Rule of Law. States may regulate the exhibition of obscenity amongst
consenting adults because they have a legitimate interest in the well being of the
community.
Facts. The Petitioner is an adult movie theatre in Atlanta, Georgia. In late 1970 it
featured 2 films that were described by the state as "hard core pornography" leaving
"little to the imagination." The theatre clearly advertises that it exhibits mature adult films
to persons 21 years and older.
Issue. Is the state law a constitutional restriction on obscenity?
Held. Yes. States have a legitimate interest in regulating commerce in obscene material
and the exhibition of such material.
Dissent.
1 • Justice William Brennan (J. Brennan): A proper test to identify obscenity
has not been established. This decision encroaches upon the First
Amendment right to free speech. The state has a legitimate interest to
protect minors from being exposed to porn, but no such interest exists
within the adult population.
2 • Justice William Douglas (J. Douglas): Obscenity is not an exception to
the First Amendment. The material is not being forced on individuals they
are choosing to watch it. So, this law interferes with the freedom of
intellect.
Discussion. The secondary effects of obscenity are discussed as a negative influence on

the community. The state has a vested interest in protecting the community from
antisocial behavior and corruption often associated with the existence of adult movie
theaters.
363 Miller v. California
Miller v. California
Citation. 413 U.S. 15 (1973).
Brief Fact Summary. The Petitioner, Miller (Petitioner), was convicted of violating the
section of the California state code prohibiting the distribution of obscenity.
Synopsis of Rule of Law. Obscenities are works when taken as whole appeal to the
prurient interest in sex, which portrays sexual conduct in a patently offensive way, and
which does not have serious literary, artistic, political, or scientific value.
Facts. Petitioner mass mailed advertisements for "adult" materials for sale. The recipients
of the mailer had in no way indicated that they were interested in receiving such material.
A state jury convicted him by characterizing the material as obscene.
Issue. Was the advertisement for obscene material?
Held. No. States may regulate materials that are patently representations of sexual acts or
descriptions of masturbation, excretory functions, and lewd exhibition of genitals. Only
those materials that depict "hardcore," patently offensive sexual conduct are exempt from
1st Amendment protection.
Discussion. The Supreme Court of the United States has traditionally recognized the
state's interest in protecting its citizens from offensive and obscene materials. This case
specifically defines obscenity based on a local community standard. Basically, all
hardcore pornography is considered obscene.
364 New York v. Ferber
New York v. Ferber
Citation. 458 U.S. 747 (1982).
Brief Fact Summary. The Respondent, Ferber (Respondent), was convicted of
distributing child pornography in violation of New York state law.
Synopsis of Rule of Law. Child pornography is obscene without exception.
Facts. Use of children in pornographic materials has increased over the years causing the
introduction of many state laws prohibiting such activity. The Respondent was a
storeowner who sold material showing children under the age of 16 engaged in sexual
activities.
Issue. Is child pornography a form of obscenity that may be constitutionally restricted?
Held. Yes. The prohibition on the sale and distribution of child pornography is
constitutional even if the material is not obscene.
1 • Distribution of these materials is intrinsically related to child abuse.
2 • Advertising and selling these types of materials provide an economic
motive to engage in illegal activity.
3 • The value of showing children engaged in sex is de minimis.
Concurrence. It is possible for some depictions of child sex acts to have serious literary,
artistic, scientific or medical value.
Discussion. These laws protect the children from being exploited and abused. This
protection of children is a legitimate state interest that outweighs an adult's freedom to
enjoy sexually explicit material.
365 Ashcroft v. The Free Speech Coalition
Ashcroft v. The Free Speech Coalition
Brief Fact Summary. The constitutionality of a Congressional act regulating certain
types of child pornography was at issue.
Synopsis of Rule of Law. Section 2256(B) of the Child Pornography Prevention Act of
1996 (the "Act") is "overbroad and unconstitutional" because it abridges the freedom to
engage in a substantial amount of lawful speech.
Facts. The Act extended the existing federal prohibitions against child pornography. The
Act extends its predecessors scope to "sexually explicit images that appear to depict
minors but were produced without using any real children." The Act prevents the
dissemination and possession of these images. There are three prohibited categories of
speech added by the Act. Section 2256(8)(B) of the Act prohibited " 'any visual
depiction, including any photograph, film, video, picture, or computer or computer-
generated image or picture,' that 'is, or appears to be, of a minor engaging in sexually
explicit conduct.' The prohibition on 'any visual depiction' does not depend at all on how
the image is produced." Due to advances in technology, it had become harder to prove
whether actual children were used in the production of certain pictures. As such, the
purpose of this section was to "[t]o ensure that defendants possessing child pornography
using real minors cannot evade prosecution, Congress extended the ban to virtual child
pornography." Section 2256(8)(C) prohibited something called morphing which allows
the altering of innocent pictures of real children to make it appear they are engaged in
sexual activity. This provision was not challenged. Section 2256(8)(D) "defines child
pornography to include any sexually explicit image that was 'advertised, promoted,
presented, described, or distributed in such a manner that conveys the impression' it
depicts 'a minor engaging in sexually explicit conduct.' "
Issue. Whether the Act violates the First Amendment of the United States Constitution
(the "Constitution") because it "proscribes a significant universe of speech that is neither
obscene under [Miller] nor child pornography under [Ferber]"?
Held. Justice Anthony Kennedy ("J. Kennedy") first observed the Act goes beyond [New
York v. Ferber], "which distinguished child pornography from other sexually explicit
speech because of the State's interest in protecting the children exploited by the
production process." Under [Ferber], the general requirement that pornography can only
be banned if it is obscene does not apply and "showing minors can be proscribed whether
or not the images are obscene under the definition proscribed by [Miller v. California]".
The [Ferber] court recognized "[t]he [Miller] standard, like all general definitions of
what may be banned as obscene, does not reflect the State's particular and more
compelling interest in prosecuting those who promote the sexual exploitation of
children." In other words, what was being regulated was the sexual exploitation of
children.
1 • J. Kennedy recognized the severity of the penalties attached to the Act and
how speech can be chilled based on these penalties. The Act would be
"unconstitutional on its face if it prohibits a substantial amount of protected
expression." The majority observed that the Act "prohibits speech despite its
serious literary, artistic, political, or scientific value." Specifically, the Act
attached criminal penalties to the idea of "teenagers engaged in sexual
activity". This is despite the fact the idea has been prevalent in art and
literature throughout the ages. Further, the Act imparts criminal penalties if
anyone appears to be under 18. An age older than what is required to be
married in many states. These two themes – teenage sexual behavior and the
sexual abuse of children – have been the inspiration for various literary works.
If certain films "that explore those subjects, contain a single graphic depiction
of sexual activity within the statutory definition, the possessor of the film
would be subject to severe punishment without inquiry into the work's
redeeming value." J. Kennedy argued "[t]his is inconsistent with an essential
First Amendment rule: The artistic merit of a work does not depend on the
presence of a single explicit scene." J. Kennedy distinguished this case from
[Ferber] because it recognized in [Ferber] the images in question were the
result of sexual abuse, and as such "the State had an interest in stamping it out
without regard to any judgment about its content." The statute in [Ferber]
targeted the production, not content of the work. Further, [Ferber] specifically
referenced "virtual child pornography" or use of someone who looked
younger in its decision, and found it as an appropriate alternative if utilized for
some literary artistic value.
2 • J. Kennedy rejected the governments assertions virtual child pornography
can be utilized by pedophiles to seduce children. The majority recognized,
however, that many other things can seduce children and they are not illegal.
Further the restriction is not narrowly drawn because, "speech within the
rights of adults to hear may not be silenced completely in an attempt to shield
children from it." J. Kennedy also rejected the argument that virtual child
pornography "whets the appetites of pedophiles and encourages them to
engage in illegal conduct." He argued, just because speech may encourage
unlawful acts does not justify its being banned. Additionally, J. Kennedy
rejected the argument that eliminating the entire market of child pornography
necessarily entails eliminating virtual pornography also. Finally, J. Kennedy
dismissed the government's argument that "the possibility of producing
images by using computer imaging makes it very difficult for it to prosecute
those who produce pornography by using real children." According to the
"overbreadth doctrine" it is not permissible to ban lawful speech in order to
ban unlawful speech.
Dissent. Justice William Rehnquist ("J. Rehnquist") filed a dissenting opinion joined by
Justice Antonin Scalia ("J. Scalia"). J. Rehnquist would have held "[t]o the extent the
CPPA prohibits possession or distribution of materials that 'convey the impression' of a
child engaged in sexually explicit conduct, that prohibition can and should be limited to
reach 'the sordid business of pandering' which lies outside the bounds of First
Amendment protection."
Concurrence. Justice Sandra Day O'Connor ("J. O'Connor") filed an opinion concurring
in part and dissenting in part, joined by Justice William Rehnquist ("J. Rehnquist") and
Justice Antonin Scalia ("J. Scalia"). J. O'Connor disagreed with the majority's holding
that the act's "prohibition of virtual-child pornography is overbroad." These justices
would have held that the prohibition of virtual-child pornography satisfies strict scrutiny
and is not unconstitutionally vague. Protection of the nation's children is a compelling
interest. J. O'Connor argued that the "appears to be … of a minor" language in a statute
should be interpreted as "is virtually distinguishable from" a minor. This reading "would
not only assure that the ban on virtual child pornography is narrowly tailored, but would
also assuage any fears that the 'appears to be ... of a minor' language is vague." J.
O'Connor does not see how the statute is overbroad because the "Respondents provide no
examples of films or other materials that are wholly computer generated and contain
images that 'appea[r] to be ... of minors' engaging in indecent conduct, but that have
serious value or do not facilitate child abuse." J. O'Connor " would strike down the
CPPA's ban on material that 'conveys the impression' that it contains actual child
pornography, but uphold the ban on pornographic depictions that 'appea[r] to be' of
minors so long as it is not applied to youthful adult pornography." Discussion. This case
is interesting to read alongside [Ashcroft v. American Civil Liberties Union] to see how
the court construes material injurious to minors on the internet.
368 Young v. American Mini Theaters, Inc.
Young v. American Mini Theaters, Inc.
Citation. 427 U.S. 50 (1976).
Brief Fact Summary. Detroit, Michigan adopted a zoning ordinance that restricted the
location of adult movie theaters and prevented too many to congregate near bars and
other regulated establishments.
Synopsis of Rule of Law. Content of speech may be used to restrict an activity, as long
as the speech is not biased by such a restriction.
Facts. Detroit, Michigan adopted a zoning ordinance that restricted the location of adult
movie theaters. The adult movie houses were not to be located within 1,000 feet of any
two other "regulated uses" and was to be located more than 500 feet from a residential
area.
Issue. Is a statute that regulates the location of adult movie theaters differently than
regular movies constitutional?
Held. Yes. This law does not restrict the communication of the material. It just limits the
location of the message.
Dissent. This is a time, place, and manner restriction. This type of restriction is to be used
only with content neutral discriminations.
Discussion. The city imposes restrictions on regular theaters as well. This restriction,
although directed at the adult entertainment, is not abnormally harsh or unreasonable. The
number of theater licenses were not limited, therefore, speech was not prohibited.
369 City of Erie v. Pap's A.M.
City of Erie v. Pap's A.M.
Citation. 120 S. Ct. 1382 (2000).
Brief Fact Summary. The Petitioner, the City of Erie (Petitioner), passed an ordinance
banning nude dancing. The Respondent, Pap's (Respondent), operates a nude bar and
challenges the constitutionality of the ordinance.
Synopsis of Rule of Law. Preventing secondary effects is a sufficient reason to make a
content neutral law.
Facts. In 1994, the Petitioner passed a law that makes it a crime to intentionally appear in
public in a "state of nudity." The Respondent, Pap' A.M. (Respondent), owns
"Kandyland" a club that features totally nude erotic dancing by women. To comply with
the ordinance, the dancers must wear G-strings and pasties. Now, the Respondent seeks a
permanent injunction against the Petitioner.
Issue. Is the ordinance constitutional?
Held. Yes. It is a content neutral regulation and does not violate the First Amendment of
the United States Constitution (Constitution) because being nude is not an expression.
Dissent.
1 • Justice David Souter (J. Souter): There is insufficient evidence to support
the city's claim of secondary effects.
2 • Justice John Paul Stevens (J. Stevens): This law is an example of
censorship. There is no way that dancers wearing G-strings and pasties
result in a decrease of the secondary effects of which the city was
concerned.
Concurrence. The First Amendment of the Constitution is violated only when the
communicative aspects of conduct are the reasons for the prohibition.
Discussion. This law was passed to prevent the secondary effects of the activity. Nude
dancing attracts other undesirable public nuisances that provide the city with a legitimate
interest in prohibiting public nudity.
370 Stanley v. Georgia
Stanley v. Georgia
Citation. 394 U.S. 557 (1969).
Brief Fact Summary. The Petitioner, Stanley's (Petitioner) home was being searched for
evidence of bookmaking when officers found obscene films.
Synopsis of Rule of Law. Mere possession of obscenity is not punishable under the
Facts. The Petitioner was being investigated for bookmaking. Officers were searching his
home when they found 8mm films that they determined to be obscene. They confiscated
the materials and charged the Petitioner with knowingly having possession of obscene
matter.
Issue. Does this law prohibiting possession of obscenity violate the First Amendment of
the Constitution?
Held. Yes. The Constitution prohibits making mere possession a crime.
Discussion. The government is not allowed to dictate to people what they will and will
not read, watch or enjoy. The Constitution strictly protects an individual from such
unwarranted intrusion and control.
371 Cohen v. California
Cohen v. California
Citation. 403 U.S. 15 (1971).
Brief Fact Summary. The Petitioner, Cohen (Petitioner), was convicted of maliciously
and willingly disturbing the peace by wearing a jacket with his opinion of the draft on the
back.
Synopsis of Rule of Law. Profanity is neither obscene nor is it equivalent to "fighting
words."
Facts. The Petitioner was against the Vietnam War. To express the extent of his feeling
he wore a jacket that read, "Fuck the Draft" on the back while walking through the Los
Angeles County Courthouse. Because of this action, he was charged and convicted of
violating a section of the California code that prohibited "malicious and willful
disturbances of the peace or quiet of any person or neighborhood by offensive conduct."
Issue. Is the use of profanity a protected expression?
Held. Yes. The state may not make a simple display of profanity in a public area a
criminal offense.
Dissent. This speech fell within the standard of Chaplinsky.
Discussion. If the public was confined to the area and exposed to the profanity, then the
state would have a legitimate interest in protecting it. But, here the audience was free to
look away if they felt offended. They were not "captives" forced to look at the jacket.
372 Federal Communications Commission v. Pacifica Foundation
Federal Communications Commission v. Pacifica Foundation
Citation. 438 U.S. 726 (1978).
Brief Fact Summary. The Respondent, Pacifica Foundation (Respondent), broadcast
part of a comedy show that listed the "dirty words" that are not to be used on the radio.
The Petitioner, the Federal Communication Commission (Petitioner), issued a declaratory
order warning Respondent of potential sanctions.
Synopsis of Rule of Law. Broadcasts of indecent material can be regulated according to
the context of the broadcast and on a case-by-case basis.
Facts. The Respondent is the parent company of a New York City radio station that aired
segments of George Carlin's 12-minute monologue on "dirty words." This included a
listing of the words that are not to be used on public airwaves. Then, the words are
repeated through common speech. This monologue was aired at 2 p.m. on a Tuesday in
1973. A listener wrote to the Petitioner complaining that his young son overheard the
words while they were driving in the car. The Respondent was given a written warning
and threatened with sanctions if anyone else complained.
Issue. Can radio broadcasts be regulated for language that is indecent, but not obscene?
Held. Yes. There is a proper public interest in protecting listeners from indecency over
the airwaves.
Discussion. The government may regulate the time of day of such broadcasts or prohibit
the use of certain words according to the context in which they are used. This ruling
considers the broadcast to be an intrusion into the public space and classifies it as a
nuisance.
373 Sable Communications of California, Inc. v. Federal Communications Commission
Sable Communications of California, Inc. v. Federal Communications
Commission
Citation. 492 U.S. 115 (1989).
Brief Fact Summary. The Petitioner, Sable Communications of California (Petitioner),
implemented "dial-a-porn" as a business and was charged with violating a federal statute
prohibiting obscene telephone messages.
Synopsis of Rule of Law. Sexual expression that is indecent, but not obscene is protected
by the First Amendment of the United States Constitution (Constitution).
Facts. In 1983, the Petitioner started a porn phone line in the Los Angles area. Special
phone lines were installed that could handle large volumes of calls. The phone company
charged users a special fee for dialing these numbers. The fee was spit between the phone
company and the Petitioner.
Issue. Is it constitutional for the Respondent, the Federal Communications Commission
(Respondent), to ban indecent and obscene interstate commercial telephone messages?
Held. It is constitutional to ban obscene telephone communications, but this regulation is
not narrowly construed.
Discussion. This decision is distinguishable from Pacifica because of the medium of
communication. Where the airwaves may permeate the privacy of a home, the dial-a-porn
requires an affirmative action by the person to receive it. The Respondent argues that this
regulation is necessary to protect minors from accessing the porn, but the majority rejects
this due to a lack of evidence.
374 Reno v. American Civil Liberties Union
Reno v. American Civil Liberties Union
Citation. 521 U.S. 844 (1997).
Brief Fact Summary. The federal government regulated sexually explicit material on the
Internet by prohibiting it unless the website could obtain the user's age verification.
Synopsis of Rule of Law. A regulation may not burden adult speech in order to protect
minors if there is a less restrictive alternative available to achieve the goal.
Facts. Sexually explicit material abounds on the Internet. However, it is unusual for a
computer user to stumble upon these sites by accident. Often the sites require a link to a
related site that the user must engage. A child must have some level of computer
expertise in order to engage the sites. Of course, parental controls are available to limit a
child's exposure to such sites by limiting access to particular sites. The most effective
means of banning children from sex sites would be through a form of age verification.
Often this is accomplished through the use of a major credit card to pay for the use.
Issue. Is the regulation of the Internet for indecent material constitutional?
Held. No. The regulation is a content-based restriction that is vaguely written. By
restricting access to minors, this regulation suppresses a large amount of speech that
adults have a right to receive. The regulation as written prohibits individuals from posting
indecent material on their own computers and ignores the fact that some material may
have real value as communication.
Discussion. The regulation is vague because it does not provide a clear definition of
indecent and patently offensive expressions on the Internet. It is not clear that both
indecent and obscene materials are being outlawed or that one is meant over the other.
375 Ashcroft v. American Civil Liberties Union
Ashcroft v. American Civil Liberties Union
Citation. 124 S.Ct. 2783 (2004)
Brief Fact Summary. Congress adopted an act criminalizing the posting of material on
the web "harmful to minors".
Synopsis of Rule of Law. The "[g]overnment failed to introduce specific evidence
proving that existing technologies [like filters] are less effective than the restrictions in
Child Online Protection Act."
Facts. The Child Online Protection Act (the "Act"), was Congress's second attempt to
criminalize certain speech on the internet. The first attempt was the Communications
Decency Act of 1996, which was found by the Supreme Court of the United States
("Supreme Court") not to be narrowly tailored to serve a compelling governmental
interest. The Supreme Court concluded other less restrictive alternatives were available.
The Act imposes stiff criminal penalties and up to six months of prison for knowingly
posting for a commercial purpose web content that is "harmful to minors". Material that
is "harmful to minors" is defined as: "any communication, picture, image, graphic image
file, article, recording, writing, or other matter of any kind that is obscene or that-- (A)
the average person, applying contemporary community standards, would find, taking the
material as a whole and with respect to minors, is designed to appeal to, or is designed to
pander to, the prurient interest; (B) depicts, describes, or represents, in a manner patently
offensive with respect to minors, an actual or simulated sexual act or sexual contact, an
actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or
post-pubescent female breast; and (C) taken as a whole, lacks serious literary, artistic,
political, or scientific value for minors." An affirmative defense is available if a person
can demonstrate they "ha[ve] restricted access by minors to material that is harmful to
minors-- (A) by requiring use of a credit card, debit account, adult access code, or adult
personal identification number; (B) by accepting a digital certificate that verifies age, or
(C) by any other reasonable measures that are feasible under available technology."
1 • The district court entered a preliminary injunctions and the Court of Appeals
concluded the district court did not abuse its discretion in doing so.
Issue. Should the Appellate Court have affirmed the district court's granting of a
preliminary injunction?
Held. Justice Anthony Kennedy ("J. Kennedy"), writing for the majority, observed a
statute that "effectively suppresses a large amount of speech that adults have a
constitutional right to receive and to address to one another ... is unacceptable if less
restrictive alternatives would be at least as effective in achieving the legitimate purpose
that the statute was enacted to serve." The government has the burden to prove that any
alternatives proposed by the challenging party will not be as effective as the challenged
statute. The purpose of this test is "to ensure that speech is restricted no further than
376 Ashcroft v. American Civil Liberties Union
necessary to achieve the goal, for it is important to assure that legitimate speech is not
chilled or punished."
1 • The court concluded that the district court did not abuse its discretion in
concluding the Respondents were likely to prevail especially since the record
demonstrated various plausible less restrictive alternatives. The Government
did not show that the "[R]espondents' proposed less restrictive alternatives are
less effective than [the Act]" J. Kennedy recognized that one of the less
restrictive and arguably more effective alternatives is "blocking and filtering
software." Especially since this technology "impose[s] selective restrictions
on speech at the receiving end, not universal restrictions at the source." A
filter would allow adults, without children, access to speech without having to
identify themselves or provide credit card information. On the other hand,
adults with children could shut off the feature. Most importantly, a potential
chilling effect is limited with filters because there are no criminal penalties
attached. The majority also recognized various reasons why filters are more
effective than the Act. First, filters apply to pornography from overseas, while
the Act does not. If the Act is passed, pornographers may move overseas.
Second, filters apply to e-mail not just information accessed over the web.
Third, a problem with the Act is that the verification procedure can be
circumvented by minors.
2 • The court concluded that filter technology was not perfect, but found the
"[g]overnment failed to introduce specific evidence proving that existing
technologies are less effective than the restrictions in [the Act]."
Dissent. Justice Antonin Scalia ("J. Scalia") filed a dissenting opinion joined by Judge
William Rehnquist ("J. Rehnquist") and Justice Sandra Day O'Connor ("J. O'Connor"). J.
Scalia, like the majority would have applied the most exacting standard of review – strict
scrutiny – and would have ensured that the Act was the "least restrictive means"
available. However, J. Scalia found that the Act was the least restrictive means to
accomplish Congress's goal. Further, J. Scalia observed "the Act at most imposes a
modest additional burden on adult access to legally obscene material, perhaps imposing a
similar burden on access to some protected borderline obscene material as well." J. Scalia
also criticized the majority's finding that "blocking and filtering software" is "a less
restrictive alternative" because he sees the software as part of the status quo and the Act
moves beyond the status quo. Additionally, the dissent argued that the filtering software
does not solve the problem. First, because some pornographic material passes through.
Second, it costs money. Third, it is dependent on children's parents to "decide where their
children will surf the web." Fourth, the blocking software lacks precision.
Discussion. It is interesting to observe how J. Scalia construed this issue and found that
the status quo included the majority's "less restrictive alternative", filtering software.
377 Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.
Virginia State Board of Pharmacy v. Virginia Citizens Consumer
Council, Inc.
Citation. 425 U.S. 748 (1976).
Brief Fact Summary. The Respondent, the Virginia Citizens Consumer Council, Inc.
(Respondent), argues that the state code prohibiting the advertising of prescription prices
is unconstitutional.
Synopsis of Rule of Law. Commercial speech is a form of protected speech that can be
regulated to protect the public from deceptive or misleading information.
Facts. Virginia will charge a licensed pharmacist of being unprofessional if he advertises
the amount he charges for prescription drugs. Drug prices vary greatly (up to 650%) by
location. Therefore, the Respondent advocates for disclosure of the prices of drugs.
Issue. Is "commercial speech" protected by the First Amendment?
Held. Yes. But, the First Amendment does not prevent the state from regulating
advertisements.
Dissent. Restrictions on commercial speech should be left to the discretion of state
legislatures.
Discussion. There is a substantial public interest in the content of advertisements. The
wording and suggestions will lead consumers to buy or use products. If the product does
not function as advertised, then the government has a legitimate interest in protecting the
economic well-being and health of the public.
378 Bolger v. Youngs Drug Products Corp.
Bolger v. Youngs Drug Products Corp.
Citation. 463 U.S. 60 (1983).
Brief Fact Summary. The Respondent, Youngs Drug Products Corp. (Respondent),
wants to send direct mailings to the public advertising its contraceptives. A federal statute
prohibits such activity.
Synopsis of Rule of Law. Commercial speech does no more than propose a commercial
transaction.
Facts. The Federal code prohibits unsolicited advertisements for contraceptives to be
mailed. The Respondent manufactures a variety of contraceptives and usually sells to
distributors. But, now it wants to send an advertising brochure to its regular customers,
plus members of the public in general.
Issue. Is this advertisement commercial speech?
Held. Yes. All of the mailings are commercial speech.
Discussion. Whether the printed material is commercial speech depends upon the
existence of three distinct attributes: (1) it is meant to be an advertisement, (2) it
references a particular product, and (3) there is an economic motivation for disseminating
the material. If all of these attributes are present, then it is protected under the First
379 Central Hudson Gas & Electric Corp. v. Public Service Commission of New York
Central Hudson Gas & Electric Corp. v. Public Service Commission of
New York
Citation. 447 U.S. 557 (1980).
Brief Fact Summary. The Respondent, Public Service Commission of New York
(Respondent), imposed a ban on all advertising by utility companies.
Synopsis of Rule of Law. Commercial speech that is not misleading and concerns lawful
activity may be regulated if the government has a substantial interest that will be
advanced through a narrowly drawn regulation.
Facts. In 1973, the Respondent ordered all electric companies to stop advertising the use
of electricity. The state determined that it did not have enough fuel to last the winter and
needed citizens to conserve. Once the shortage was over, the Respondent polled the
public to decide whether to continue the ban on the electric companies. The Petitioner,
Central Hudson Gas & Electric Corp. (Petitioner), opposed this ban on First Amendment
constitutional grounds.
Issue. Does this ban on advertisement violate the First Amendment of the Constitution?
Held. Yes. Although energy conservation is important, it does not justify a total ban on
all advertisements promoting the use of electric devices or services.
Discussion. This is an identical test to intermediate scrutiny. The government has the
burden to prove that there is a substantial interest that the regulation protects. It is not
appropriate to continue a ban to curb consumption of the electric utility.
380 Friedman v. Rogers
Friedman v. Rogers
Citation. 440 U.S. 1 (1979).
Brief Fact Summary. Texas state law prohibits the use of a trade name by optometrists.
Synopsis of Rule of Law. Trade names are not a form of commercial speech, as they
have no intrinsic meaning.
Facts. Texas state law prohibits the use of a trade name by optometrists.
Issue. Is this restriction on the use of trade names constitutional?
Held. Yes. Texas has demonstrable evidence of public misunderstanding associated with
the use of trade names.
Discussion. The danger of confusing the public is very real. The names are sold as part of
the business of optometry. Therefore, a name that used to be associated with a certain
level of quality due to the staff and practitioner may not be the same under the current
management and is, therefore, misleading and deceptive.
381 Linmark Associates, Inc. v. Township of Willingboro
Linmark Associates, Inc. v. Township of Willingboro
Citation. 431 U.S. 85 (1977).
Brief Fact Summary. The Respondent, Township of Willingboro (Respondent),
prohibited homeowners from displaying "For Sale" signs in their yards.
Synopsis of Rule of Law. "For Sale" signs are a form of protected commercial speech
that serves as a communication between homeowner and purchaser.
Facts. The Respondent prohibited the posting of home sale signs because it alleges that
the number of houses being sold in the neighborhood was causing the white citizens to
leave. The Respondent claims a goal of promoting a stable, racially integrated
neighborhood.
Issue. Is this restriction on signs constitutional?
Held. No. The restriction bans the free flow of information between buyer and seller.
Discussion. The Respondent has shown no legitimate interest in the exchange of this
information. The reason cited refers to implied data communicated by the signs that
might cause the readers to act "irrationally." Therefore, the restriction is unconstitutional.
382 44 Liquormart, Inc. v. Rhode Island
44 Liquormart, Inc. v. Rhode Island
Citation. 517 U.S. 484 (1996).
Brief Fact Summary. The state prohibited all advertisements of alcohol prices by stores
and the media.
Synopsis of Rule of Law. Restriction of commercial speech must advance a state interest
to a "material degree" and be no more restrictive than necessary.
Facts. Rhode Island (Respondent) passed legislation prohibiting all advertisements of the
price of alcohol beverages. Both the retailers and the media were banned from
communicating this information. This ban applied to all stores located outside the state
that might advertise within the state. The state defended its legislation when it stated that
it would lead to lower prices, and lower prices would lead to increased consumption.
Issue. Can a state constitutionally prohibit the advertising of alcohol prices?
Held. No. All nine justices agreed that the statute was invalid, however, all differed in
their rationale. The state statute prohibiting the advertisements is an invalid restriction of
commercial speech.
Concurrence.
1 • Justice Thomas found the balancing of state and individual interests to be
inappropriate in this situation because the cited state interest is
illegitimate.
2 • Justice O'Connor agreed with the judgment, but applies the Central
Hudson test. A lawful activity that is not misleading may not be restricted
unless there is a substantial government interest being advanced. This ban
on advertisements is more extensive than necessary and overly broad.
Discussion. There is a valid state interest in preventing untruthful, misleading

information from being put upon the unsuspecting public. But this statute is a complete
bar on all commercial speech. There is no situation that would justify this statute.
Lorillard Tobacco Co. v. Reilly
Citation. 533 U.S. 525 (2001)
Brief Fact Summary. Massachusetts placed restrictions on various tobacco related
advertising.
Synopsis of Rule of Law. The [Central Hudson Gas & Electric Corp. v. Public Service
Commission of New York] analysis involves four elements: "At the outset, we must
determine whether the expression is protected by the First Amendment. For commercial
speech to come within that provision, it at least must concern lawful activity and not be
misleading. Next, we ask whether the asserted governmental interest is substantial. If
both inquiries yield positive answers, we must determine whether the regulation directly
advances the governmental interest asserted, and whether it is not more extensive than is
necessary to serve that interest."
Facts. The state of Massachusetts passed certain regulations banning the advertising of
smokeless tobacco products and cigars. Federal law regulates cigarette advertising so that
is not at issue here.
Issue. Does Massachusetts' statutory scheme violate the Supreme Court of the United
States' regulations of commercial speech?
Held. Yes. Justice Sandra Day O'Connor ("J. O'Connor") writing for the majority begins
by laying out its framework for analyzing commercial speech under [Central Hudson].
The analysis involves four elements: "At the outset, we must determine whether the
expression is protected by the First Amendment. For commercial speech to come within
that provision, it at least must concern lawful activity and not be misleading. Next, we
ask whether the asserted governmental interest is substantial. If both inquiries yield
positive answers, we must determine whether the regulation directly advances the
governmental interest asserted, and whether it is not more extensive than is necessary to
serve that interest."
1 • The court recognizes that only the last two factors are applicable here. The
third factor "concerns the relationship between the harm that underlies the
State's interest and the means identified by the State to advance that interest. It
requires that 'the speech restriction directly and materially advanc[e] the
asserted governmental interest. 'This burden is not satisfied by mere
speculation or conjecture; rather, a governmental body seeking to sustain a
restriction on commercial speech must demonstrate that the harms it recites
are real and that its restriction will in fact alleviate them to a material degree.'
" The fourth step requires "asking whether the speech restriction is not more
extensive than necessary to serve the interests that support it." The restriction
need not be "the least restrictive means", but instead a reasonable " 'fit
between the legislature's ends and the means chosen to accomplish those ends,
... a means narrowly tailored to achieve the desired objective.' "
1 • As to the third factor, J. O'Connor observed that the Food and Drug
Administration found "[t]he recent and very large increase in the use of
smokeless tobacco products by young people and the addictive nature of these
products has persuaded the agency that these products must be included in any
regulatory approach that is designed to help prevent future generations of
young people from becoming addicted to nicotine-containing tobacco
products." The court made similar observations about the underage use of
cigars. Additionally, the majority "disagree[d] with petitioners' claim that
there is no evidence that preventing targeted campaigns and limiting youth
exposure to advertising will decrease underage use of smokeless tobacco and
cigars." J. O'Connor concluded "[o]ur review of the record reveals that the
Attorney General has provided ample documentation of the problem with
underage use of smokeless tobacco and cigars."
2 • J. O'Connor argued, however, that the regulation did not satisfy the fourth
prong of the [Hudson] test. The court observed, "[t]he broad sweep of the
regulations indicates that the Attorney General did not 'carefully calculat[e]
the costs and benefits associated with the burden on speech imposed' by the
regulations." The Supreme Court criticized the substantial geographical reach
of the regulations, the fact that outdoor advertising included advertising
visible from outside a store and the fact that advertisements of any size are
banned. The effect would be that "[i]n some geographical areas, these
regulations would constitute nearly a complete ban on the communication of
truthful information about smokeless tobacco and cigars to adult consumers."
3 • J. O'Connor concluded "that the Attorney General has failed to show that the
outdoor advertising regulations for smokeless tobacco and cigars are not more
extensive than necessary to advance the State's substantial interest in
preventing underage tobacco use."
Dissent. Justice John Paul Stevens ("J. Stevens") filed an opinion joined by Justice Ruth
Bader Ginsburg ("J. Ginsburg") and Justice William Breyer ("J. Breyer"), concurring and
dissenting in part. J. Stevens discusses how statutes restricting speech can be invalid for
two different reasons. "First, the means chosen may be insufficiently related to the ends
they purportedly serve." "Second, statute[s] may be so broadly drawn that, while
effectively achieving its ends, it unduly restricts communications that are unrelated to its
policy aims."
Concurrence. Judge Clarence Thomas ("J. Thomas") filed an opinion concurring in part
and concurring in the judgment. J. Thomas states "I join the opinion of the Court, [but] I
continue to believe that when the government seeks to restrict truthful speech in order to
suppress the ideas it conveys, strict scrutiny is appropriate, whether or not the speech in
question may be characterized as 'commercial.' " As such, J. Thomas would "subject all
of the advertising restrictions to strict scrutiny and would hold that they violate the First
Amendment."
Discussion. This case offers a very good example of how the [Central Hudson] factors
are applied.
386 New York Times Company v. Sullivan
New York Times Company v. Sullivan
Citation. 376 U.S. 254 (1964).
Brief Fact Summary. A newspaper is being sued for publishing a full-page
advertisement that was critical of a public official in Alabama.
Synopsis of Rule of Law. A public official must show by clear and convincing evidence
that the statements made against him are false and were made with actual malice. Actual
malice requires the speaker to know that the statement was false or that he acted with
reckless disregard for the truth.
Facts. Sullivan (Respondent) is a Commissioner of Montgomery, Alabama. In his official
capacity, he supervises the police and fire departments of the city. In 1960, the New York
Times (Petitioner) ran a full-page advertisement describing the plight of black students in
the South and the "wave of terror" they endured at the hands of the public official.
Specific events were enumerated along with a request for donations. A lower court
awarded damages of $500,000.00 to Respondent for the injury caused to his reputation.
Issue. Can a public official bring suit against critics of his official conduct?
Held. No. Public officials cannot recover because the media does not agree with his
actions and chooses to publish unflattering reports.
Discussion. The Supreme Court of the United States discusses the importance of
preserving speech as the currency of social change. Even if a thought is unpopular it
cannot be squashed. This is the whole point of the Constitutional Amendment to protect
speech and critical of government. Free speech encourages democracy and abandons the
repression of a monarchy.
387 Gertz v. Welch
Gertz v. Welch
Citation. 418 U.S. 323 (1974).
Brief Fact Summary. A magazine attacked the reputation of an attorney by publishing
false accusations and attacks of his character.
Synopsis of Rule of Law. Private individuals involved in matters of public concern may
recover for actual damages if they prove that defamatory statements were actually false
and negligently made by the speaker.
Facts. Welch (Respondent) is a magazine publisher who warned his readers that a
national police was being developed that supported Communism. Respondent ran an
article, which accused Gertz (Petitioner) of being the "architect of a frame-up, a
"Leninist", and a "Communist-fronter" for bringing suit against a local police officer who
killed a child. In the article, Respondent implied that Petitioner had a criminal record, but
he made no effort to verify any of the statements published.
Issue. Does freedom of the press provide privilege against liability for defamation of
individuals who are not public officials or public figures?
Held. No. However, each state may define the appropriate standard of liability for
defamation to a private individual.
Dissent.
1 • Justice Brennan: The proper test for determining defamation against
individuals is the same as articulated in New York Times.
2 • Justice White: Libel should remain an unprotected class of speech.
Discussion. People are not at the mercy of the press unless they are a public figure or
official who can fight back. The state has a legitimate interest in protecting individuals
from defamatory statements made by members of the press.
388 Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.
Citation. 472 U.S. 749 (1985).
Brief Fact Summary. A credit reporting agency erroneously reported the bankruptcy of
a company to its lenders.
Synopsis of Rule of Law. Absent actual malice, a private individual may be awarded
damages even when there is no matter of public concern if he proves that there was a
false statement and that it was negligently made.
Facts. Dun & Bradstreet, Inc., (Petitioner) is a credit reporting agency. It sent a report to
five lending institutions indicating that Greenmoss Builders, Inc., (Respondent) had filed
for bankruptcy. When Respondent learned of this error, it requested the names and
addresses of the five recipients of the report. But Petitioner refused to divulge this
information or do anything to correct the problem. A jury awarded Respondent
$50,000.00 actual damages, plus $300,000.00 punitive damages.
Issue. Was the credit report a matter of public concern?
Held. No. However, Respondent should have been allowed to collect damages as this
ruling does not violate the First Amendment.
Dissent. The test from Gertz should have been applied here to overturn the jury award.
Discussion. The private information that was shared was false, but its validity could have
easily been checked. Respondent was harmed by this oversight and deserves to be
compensated and protected from future harm.
389 Hustler Magazine v. Falwell
Hustler Magazine v. Falwell
Citation. 485 U.S. 46 (1988).
Brief Fact Summary. A magazine published a sexual parody, which poked fun at a well-
known evangelist and attacked his morals.
Synopsis of Rule of Law. Public figures can recover for intentional infliction of
emotional distress if they can show false statement of fact and actual malice.
Facts. Hustler Magazine (Petitioner) ran a parody advertisement that featured Falwell
(Respondent) talking about his "first time." Petitioner drafted an alleged interview in
which Respondent admits to drunken incestuous encounters with his mother in an
outhouse. The ad portrays Respondent as a hypocrite and a drunk. At the bottom of the
advertisement page is a statement, "ad parody - not to be taken seriously." Respondent
sued for libel, invasion of privacy and intentional infliction of emotional distress. The
jury awarded Respondent damages.
Issue. Can a public figure recover damages for emotional harm caused by a parody?
Held. No. The New York Times standard for public figure defamation must be applied in
this situation.
Discussion. Parody is a form of communication that purposefully pokes fun. It does not
express a malicious falsehood. Instead, it takes a component of one's character and
exaggerates it to the point of distortion. This type of speech is protected.
390 Cox Broadcasting Corp. v. Cohn
Cox Broadcasting Corp. v. Cohn
Citation. 420 U.S. 469 (1975).
Brief Fact Summary. A reporter disclosed the name of a murdered rape victim against
the deceased's family's wishes.
Synopsis of Rule of Law. There is no liability associated with public disclosure of
private facts when the information was lawfully obtained from public records and is
truthfully reported.
Facts. Cohn's daughter was raped and killed in a brutal attack by six assailants. Five of
the Defendants plead guilty to rape and one plead not guilty. As a result, the case was set
to go to trial. A reporter for Cox Broadcasting (Petitioner) learned the name of the victim
from the grand jury indictments filed with the court. He chose to broadcast the victim's
name on the local news as part of his report on the case. Cohn (Respondent) subsequently
sued for invasion of privacy.
Issue. Is it unconstitutional to hold a member of the press liable for the public disclosure
of private facts?
Held. No. Public records are available for inspection by the media, and they are free to
publish the facts gathered as a result of their research.
Discussion. Court proceedings are public record. The public relies on the media to
inform them and research what the individual does not have time to do. It would be
contradictory to allow the media to review public records but not report the information
because it is about private persons.
391 Florida Star v. B.J.F.
Florida Star v. B.J.F.
Citation. 491 U.S. 524 (1984).
Brief Fact Summary. A newspaper reported the name of a crime victim against her
wishes.
Synopsis of Rule of Law. If truthful information is lawfully obtained about a matter of
public interest, then the state may not punish the publication of this information.
Facts. Florida Star (Petitioner) is a newspaper in Jacksonville that runs a section of
"police reports" in its paper. B.J.F. (Respondent) was a victim of a robbery and sexual
assault that she reported to the police. In the police report Respondent was identified by
name and the report was placed in the police station press room. Petitioner prepared a
brief based on this report and named Respondent in its paper. Respondent alleges
negligence by Petitioner for printing her full name.
Issue. Is there an invasion of privacy when information is truthfully reported from public
records?
Held. No. This conduct may be punished only when there is a narrowly tailored,
significant state interest in doing so.
Dissent. There is no public interest in publishing or identifying the victims of crime.
Therefore, Respondent should be compensated for Petitioner's conduct.
Discussion. There is no legitimate state interest in the censorship of the media to protect
an individual's identity.
392 Bartnicki v. Vopper
Bartnicki v. Vopper
Citation. 532 U.S. 514 (2001)
Brief Fact Summary. A cellular telephone call between two individuals involved in a
contentious debate between a teacher's union and a school board, was intercepted and
played on the radio.
Synopsis of Rule of Law. "[A] stranger's illegal conduct does not suffice to remove the
First Amendment shield from speech about a matter of public concern."
Facts. The contents of an illegally intercepted cellular telephone communication were
repeatedly disclosed. The individuals responsible for the disclosures did not play a role in
the calls interception, but knew or should of known that the interception was unlawful.
The Petitioners, Kane and Bartnicki (the "Petitioners"), were involved in contentious
collective-bargaining negotiations throughout 1992 and 1993, between the teachers at
Wyoming Valley West High School and the school board. The negotiations were greatly
covered by the media. In May 1993, Bartnicki, the union's "chief negotiator", placed a
call on her cell phone to Kane, which was intercepted. During the conversation, Kane
said "If they're not gonna move for three percent, we're gonna have to go to their, their
homes .... To blow off their front porches, we'll have to do some work on some of those
guys. (PAUSES). Really, uh, really and truthfully because this is, you know, this is bad
news. (UNDECIPHERABLE)." In 1993, the parties to the collective bargaining
negotiations accepted a non-binding arbitration proposal generally favorable to the
teachers. The Respondent, Vopper (the "Respondent"), a radio announcer critical of the
union, played on his show the intercepted tape of the cellular telephone call. Another
radio station played and a newspaper also printed the contents of the tape. The
Respondent obtained the tape from Jack Yocum ("Mr. Yocum"), the head of a taxpayer
organization opposed to the union's demands. Mr. Yocum found the tape in his mailbox
shortly after the interception and recognized the Petitioner's voices.
1 • Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the
"Act"), is the statute relevant to this matter. The Act was promulgated by
Congress to "to protect effectively the privacy of wire and oral
communications." "Subsection (a) applied to any person who 'willfully
intercepts ... any wire or oral communication.' Subsection (b) applied to the
intentional use of devices designed to intercept oral conversations; subsection
(d) applied to the use of the contents of illegally intercepted wire or oral
communications; and subsection (e) prohibited the unauthorized disclosure of
the contents of interceptions that were authorized for law enforcement
purposes. Subsection (c), the original version of the provision most directly at
issue in this suit, applied to any person who 'willfully discloses, or endeavors
to disclose, to any other person the contents of any wire or oral
communication, knowing or having reason to know that the information was
obtained through the interception of a wire or oral communication in violation
of this subsection.' The oral communications protected by the Act were only
1 those 'uttered by a person exhibiting an expectation that such communication
is not subject to interception under circumstances justifying such
expectation.'" The original 1968 statute did not apply to the monitoring of
radio transmissions or cordless telephone communications, but subsequent
Amendments increased the scope to cover these types of transmissions.
Issue. "Where the punished publisher of information has obtained the information in
question in a manner lawful in itself but from a source who has obtained it unlawfully,
may the government punish the ensuing publication of that information based on the
defect in a chain?"
Held. No. Justice John Paul Stevens ("J. Stevens") writing for the majority first talked
about Title III of the Act. J. Stevens then examined three facts that distinguished the case
before it from other cases brought under the Act. First, the Respondents did not
participate in the illegal interception. Second, the Respondents access to the information
on the tapes was lawfully obtained, although the information on the tape was unlawfully
obtained by an unknown third party. Third, the subject matter of the discussion on the
tape was a matter of public concern.
1 • J. Stevens then agreed with the Petitioners that both the Act and the
Pennsylvania state statute are content-neutral laws of general applicability.
Here, accordingly "the basic purpose of the statute at issue is to 'protec [t] the
privacy of wire[, electronic,] and oral communications.' The statute does not
distinguish based on the content of the intercepted conversations, nor is it
justified by reference to the content of those conversations."
2 • The majority then observed that punishment for the publication of
information that is true "seldom can satisfy constitutional standards." Further,
"if a newspaper lawfully obtains truthful information about a matter of public
significance then state officials may not constitutionally punish publication of
the information, absent a need ... of the highest order."
3 • J. Stevens then recognized two interests the government puts forth for
validating the statute. First, "the interest in removing an incentive for parties
to intercept private conversations". Second, "the interest in minimizing the
harm to persons whose conversations have been illegally intercepted." The
majority observe, those two interests justify penalizing the interceptor, but not
necessarily an individual who innocently obtains the intercept. As to the first,
J. Stevens observed "it would be quite remarkable to hold that speech by a
law-abiding possessor of information can be suppressed in order to deter
conduct by a non-law-abiding third party." Additionally that, "[a]lthough there
are some rare occasions in which a law suppressing one party's speech may be
justified by an interest in deterring criminal conduct by another, this is not
such a case." The majority found the government's second contention much
stronger than the first. Privacy of communication is a very important interest
and "fear of public disclosure of private conversations might well have a
chilling effect on private speech." Although strong, the court
1 concluded "privacy concerns give way when balanced against the interest in
publishing matters of public importance." This flows from the fact that "[O]ne
of the costs associated with participation in public affairs is an attendant loss
of privacy."
2 • As such, J. Stevens concluded "we think it clear that a stranger's illegal
conduct does not suffice to remove the First Amendment shield from speech
about a matter of public concern. The months of negotiations over the proper
level of compensation for teachers at the Wyoming Valley West High School
were unquestionably a matter of public concern, and respondents were clearly
engaged in debate about that concern."
Concurrence. Justice Stephen Breyer ("J. Breyer") filed a concurring opinion joined by
Justice Sandra Day O'Connor ("J. O'Connor"). J. Breyer joined the Court's majority
opinion because he "agree[d] with its narrow holding limited to the special circumstances
present here: (1) the radio broadcasters acted lawfully (up to the time of final public
disclosure); and (2) the information publicized involved a matter of unusual public
concern, namely, a threat of potential physical harm to others." However, J. Breyer wrote
separately to "explain why, in my view, the Court's holding does not imply a significantly
broader constitutional immunity for the media." J. Breyer stressed the content of the
Petitioners' conversation and that it threatened the safety of others. As such, "the law
recognizes a privilege allowing the reporting of threats to public safety." Additionally,
the Petitioners were both "limited public figures". J. Breyer thinks was it important to
stress the "[c]ourt does not create a 'public interest' exception that swallows up the
statutes' privacy-protecting general rule. Rather, it finds constitutional protection for
publication of intercepted information of a special kind."
Dissent. Justice William Rehnquist ("J. Rehnquist") filed a dissenting opinion joined by
Justice Antonin Scalia ("J. Scalia") and Justice Clarence Thomas ("J. Thomas"). J.
Rehnquist criticized the majority's position arguing that it "diminishes, rather than
enhances, the purposes of the First Amendment, thereby chilling the speech of the
millions of Americans who rely upon electronic technology to communicate each day."
Additionally, J. Rehnquist criticized the application of strict scrutiny to "content-neutral
laws of general applicability". Instead, the dissent advocated content-neutral regulations
being sustained if they "further[ ] an important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free expression; and if the
incidental restriction on alleged First Amendment freedoms is no greater than is essential
to the furtherance of that interest." In other words, intermediate scrutiny.
Discussion. It is interesting to read the majority and dissenting opinions alongside one
another and try to see whether the application of strict scrutiny or intermediate scrutiny is
appropriate.
395 United States v. O'Brien
United States v. O'Brien
Citation. 391 U.S. 367 (1968).
Brief Fact Summary. O'Brien (Petitioner) was prosecuted for burning his draft card.
Synopsis of Rule of Law. When speech and non-speech combine in the same course of
conduct, an important governmental interest in regulating the non-speech justifies
incidental limitation on speech.
Facts. Respondent burned his draft card while standing on the steps of the South Boston
Courthouse. Several FBI agents observed the act but did not arrest him. Respondent was
eventually convicted of "willfully and knowingly destroying by burning a Selective
Service Form."
Issue. Is the federal regulation prohibiting the burning of draft cards an unconstitutional
prohibition of "symbolic speech"?
Held. No. Congress has a legitimate interest in preventing the destruction of draft cards
as they are used as an identification card and proof of registry.
Discussion. Selective Service Cards serve as identifiers and a tracker of potential military
members. The regulation is justified if it (O'Brien Test): 1) furthers an important or
substantial governmental interest; 2) is unrelated to the suppression of free expression;
and 3) does not restrict speech any greater than necessary to further the legitimate
governmental interest.
396 Texas v. Johnson
Texas v. Johnson
Citation. 491 U.S. 397 (1989).
Brief Fact Summary. Johnson (Respondent) was convicted for burning the American
flag.
Synopsis of Rule of Law. The government may not prohibit expression because it
disagrees with the message.
Facts. Respondent demonstrated at the 1984 Republican Convention in Dallas. During
the protest, he doused a United States flag with kerosene and set it on fire in front of the
Dallas City Hall. Meanwhile, demonstrators chanted, "American red, white and blue, we
spit on you." Of the 100 demonstrators, only Respondent was charged with a crime.
Issue. Is flag burning "symbolic speech" protected by the First Amendment?
Held. Yes. The burning was meant to communicate Respondent's feelings regarding the
government's leadership. It was political expression that may not be squashed by statute.
Dissent.
1 • Justice Rehnquist: The statute is Constitutional because it limits only one
means of communication. This means is rather inarticulate and not worth
protecting.
2 • Justice Stevens: Preserving the symbolic value of the flag is a sufficient
governmental interest to support this restriction of speech.
Discussion. The state is concerned with preserving the flag as a symbol of national unity
and respect. It is concerned with the image expressed by the act of burning the flag. This
interpretation of the act itself transforms the act from conduct to a form of speech
protected by the First Amendment.
397 Buckley v. Valeo
Buckley v. Valeo
Citation. 424 U.S. 1 (1976).
Brief Fact Summary. State regulated the amount citizens could contribute to political
campaigns.
Synopsis of Rule of Law. Restricting campaign expenditure is an unconstitutional
restriction of political speech. But limiting contribution amounts is constitutional because
donation is conduct and not speech.
Facts. There is a federal regulation that limits the amount of money an individual can
give to political candidates. It also imposes an overall donation limit. Valeo (Respondent)
claims that the state regulation is limiting political conduct while Buckley (Petitioner)
believes that the federal regulation is limiting political speech.
Issue. Is the regulation an unconstitutional restriction on freedom of speech?
Held. No. By limiting contributions the government is preserving its interest in the
integrity of the system of democracy. This interest is sufficient to justify the effect on the
First Amendment right of contributors. On the other hand, the regulation limiting political
expenditures places substantial restriction on a person's right to engage in political
speech.
Discussion. Spending of money is speech because it is used to disseminate political
thoughts. On the other hand, a donation is conduct. It is a measure of support and does
not result in direct political communication. But it has a high probability of showing
impropriety on behalf of the candidates.
398 Nixon v. Shrink Missouri Government PAC
Nixon v. Shrink Missouri Government PAC
Citation. 120 S. Ct. 897 (2000).
Brief Fact Summary. A state statue limits individual political contributions.
Synopsis of Rule of Law. The danger of corruption by large dollar contributions is
sufficiently plausible to satisfy heightened scrutiny of the First Amendment infringement.
Facts. The Missouri state statute limits the amount of individual political contributions
from $250.00 to $1,000.00 depending upon the office and the size of the constituency.
The state claims that its interest is in preventing corruption.
Issue. Are state limitations on political contributions for state political candidates
constitutionally valid?
Held. Yes. The holding of Buckley still applies today.
Dissent.
1 • Justice Kennedy: This decision has forced the development of covert
speech and elaborate schemes to avoid the detection of contributions.
2 • Justice Thomas: Campaign contribution limits should be subject to strict
scrutiny.
Concurrence. The donation of money is a property right and not an exercise of free
speech.
Discussion. No actual evidence of corruption need be present. The mere perception or
suggestion that it is possible is sufficient to meet the governmental burden of a legitimate
interest.
399 First National Bank of Boston v. Bellotti
First National Bank of Boston v. Bellotti
Citation. 435 U.S. 765 (1978).
Brief Fact Summary. State prohibits corporations from spending money on promotions
that will endorse or oppose local referendums.
Synopsis of Rule of Law. The government may not restrict the topics of speech for
corporations.
Facts. The First National Bank of Boston (Petitioner) is prohibited by state statute from
spending "for the purpose of influencing the vote on any question that does not affect the
corporation directly." Petitioner wanted to publicize a view of a constitutional
amendment that would allow state legislation to impose graduated tax on income of
individuals.
Issue. Is the state regulation of corporate speech constitutional?
Held. No. The Court reversed the state supreme court. It is unconstitutional to restrict
corporate speech to items that are "materially affecting" its business.
Dissent. The majority improperly substituted its judgment over the state legislature and
drastically departs from prior decisions.
Discussion. A corporation should not be treated differently than private persons. The
corporation may freely discuss government affairs. They do not otherwise control or
drown out the voices of individuals.
400 Hague v. Committee for Industrial Organization
Hague v. Committee for Industrial Organization
Citation. 307 U.S. 496 (1939).
Brief Fact Summary. City prohibited the distribution of labor union leaflets on public
sidewalks.
Synopsis of Rule of Law. People have the right to use public spaces for any lawful
purpose free of government restraint.
Facts. Respondent, Committee for Industrial Organization tried to organize a labor union.
Petitioner, Hague deliberately excluded and removed all agents of Respondents from
Jersey City. Petitioner also prohibited the distribution of informational leaflets.
Issue. Can city regulatory use of its property to restrict speech?
Held. No. Affirm the holding of the lower court. The ordinance is void on its face.
Discussion. Parks, sidewalks, and public streets have always been recognized as
legitimate places for community gatherings and communication. Therefore, any restraint
on public speech that occurs in such a forum is unconstitutional.
401 Schneider v. New Jersey
Schneider v. New Jersey
Citation. 308 U.S. 147 (1939).
Brief Fact Summary. There are three separate cases when regulations prohibited the
distribution of handbills to members of the public on the street or sidewalks.
Synopsis of Rule of Law. A citizen has the right to distribute information to others on
the public streets.
Facts. Los Angeles code prohibits the distribution of pamphlets to people on the
sidewalks and in cars. Petitioner was distributing a meeting notice to "Friends of Lincoln
Brigade" where speakers would discuss the war in Spain.
Milwaukee has a code similar to Los Angeles. Petitioner was picketing a meat market
and passing out pamphlets explaining the union's position.
Irvington, New Jersey requires prior permission to distribute pamphlets to the public.
Petitioner, a Jehovah's Witness is charged with canvassing without a permit.
Issue. Are these city restrictions constitutional?
Held. No. There are other less restrictive ways to prevent littering.
Discussion. As long as the distribution of pamphlets is peaceful the government has no
legitimate interest in prohibiting this form of communication. A traffic jam or blockage
of walkways is an important interest that may be significant enough to partially regulate
the time, place, and manner of the communication, but it does not support a complete ban
on speech.
402 Perry Education Assn. v. Perry Local Educator's Assn.
Perry Education Assn. v. Perry Local Educator's Assn.
Citation. 460 U.S. 37 (1983).
Brief Fact Summary. A teachers union was denied access to school district mailboxes to
distribute informational brochures.
Synopsis of Rule of Law. The government may reserve a forum for its purpose as long
as the regulation is reasonable and not an effort to suppress views of its opponents.
Facts. Perry Education Assn. (Petitioner) is the union for teachers in Perry Township. An
agreement limited access to district mailboxes to Petitioner only. Perry Local Educator's
Assn. (Respondent) as a competitor was denied access to the mailboxes
Issue. Is school district required to provide access to internal mailboxes to Respondent?
Held. No. The mailboxes are not a public forum. The school district has no constitutional
obligation to allow Respondent to access the mailboxes.
Discussion. A public forum includes such public places as parks and sidewalks. All
communication may not be prohibited in such areas. The regulation must be necessary to
serve a compelling interest and narrowly drawn to be constitutional. On the other hand,
content neutral regulations (time, place, manner restrictions) must be narrowly tailored to
achieve a significant governmental interest while leaving alternative channels of
communication available.
403 Police Department of the City of Chicago v. Mosley
Police Department of the City of Chicago v. Mosley
Citation. 408 U.S. 92 (1972).
Brief Fact Summary. A city had an ordinance prohibiting picketing next to a school.
Synopsis of Rule of Law. Once a forum becomes public the government cannot prohibit
speech there based on its content.
Facts. Mosley (Respondent) is a postal worker who picketed a high school in Chicago for
seven months. During school hours he picketed by himself with a sign accusing the
school of discrimination and using racial quotas. The protest was always peaceful,
orderly, and quiet. Then the City of Chicago passed an ordinance prohibiting picketing
next to a school.
Issue. Is selective exclusion of picketing from a public place constitutional?
Held. No. The ordinance is a content-based prohibition and not a proper time, place, and
manner restriction.
Discussion. The ordinance is defective because it discriminates based on the nature of the
picket. It operates as a censor of what is publicly acceptable expression and what is not.
404 Hill et al. v. Colorado
Hill et al. v. Colorado
Citation. 120 S. Ct. 2480 (2000).
Brief Fact Summary. The state has a regulation that prohibits picketing within 100 feet
of a healthcare facility entrance.
Synopsis of Rule of Law. Time, place, and manner restriction of speech is justified when
it is content-neutral and places minor restriction in a broad category of communications.
Facts. Colorado statute regulates picketing conducted within 100 feet of the entrance of a
healthcare facility. Picketers cannot come within eight feet of another to pass out a
pamphlet. Hill (Petitioner) provided "sidewalk counseling" by medical facilities that
performed abortions.
Issue. Is the statute a constitutional regulation of the speaker for protection of the
"listener"?
Held. Yes. The state has a legitimate interest in protecting citizens from unwanted
confrontations.
Dissent.
1 • Justice Scalia: The majority agrees with the regulation because it limits
pro-life speech. It is content-based and needs to be analyzed under strict
scrutiny.
2 • Justice Kennedy: This is a content-based restriction subject to strict
scrutiny. It specifically limits speech in front of healthcare facilities.
Discussion. This regulation places a restriction on the place of speech and not the speech.
It applies equally to all persons regardless of the message. The state interest in protecting
access and privacy are unrelated to the content of the speech. This places a minor
restriction on the place of speech in regards to an unwilling listener.
405 Ward v. Rock Against Racism
Ward v. Rock Against Racism
Citation. 491 U.S. 781 (1989).
Brief Fact Summary. Pock Against Racism (Respondent) is a sponsor of a rock concert
who challenges New York City's restriction on the volume of performances on Central
Park.
Synopsis of Rule of Law. Government regulation of a public forum does not have to be
the least restrictive alternative.
Facts. Central Park contains an amphitheatre that is next to Central Park West and a quiet
relaxation area of the park, Sheep Meadow. In an effort to maintain the quietness of the
area, the city has imposed a restriction on all performances to use specified amplification
equipment and staff provided by the city.
Issue. Is the city's restriction of amplification equipment Constitutionally valid?
Held. Yes. This is a proper time, place, manner restriction that does not discriminate
based on content.
Dissent. This regulation is not narrowly tailored and the majority has abandoned the
requirement that a regulation be the least intrusive means of achieving the goal of quiet.
Discussion. The city has a legitimate interest in keeping the sound from permeating the
surrounding residential and other quiet areas. A content-neutral restriction does not need
to be the least restrictive manner of accomplishing a goal. But, it must still be narrowly
drawn and not substantially burden the speech. Volume control is not a burden on speech.
406 Adderley v. Florida
Adderley v. Florida
Citation. 385 U.S. 39 (1966).
Brief Fact Summary. Adderley (Petitioner) was arrested for demonstrating on the
grounds of the local jail.
Synopsis of Rule of Law. The state has the power to preserve the property under its
control for the use for which it is lawfully dedicated.
Facts. Petitioner was convicted of trespass with a mischievous intent or purpose. She
along with thirty-one other college students marched to the local jail to protect the arrest
of some students the previous day. They also were expressing their distaste for
segregation of schools and the jails on Florida.
Issue. Were the arrest and charge unconstitutional restrictions of Petitioner's First
Amendment right to free speech?
Held. No. The sheriff had the right to remove persons from jail property when their
presence interfered with the operation of the facility.
Dissent. Protesting at a jail facility is the form of communication available to the masses
that may not be of the means to access newspapers or political powers. Therefore, this
regulation is a form of censorship of the common people.
Discussion. A jail is a non-public forum. It is designed to house criminal convicts and
suspects, not to serve as a place for political protest or demonstration. Historically, the
jailhouse has not been open to the public for the purpose of communicating ideas. The
sheriff asked the demonstrators to leave because they were disrupting the jail, not because
he disagreed with the message of their speech.
407 Greer v. Spock
Greer v. Spock
Citation. 424 U.S. 828 (1976).
Brief Fact Summary. Respondent, Spock was a presidential candidate that wanted to
enter a military base and distribute campaign literature.
Synopsis of Rule of Law. Military bases may constitutionally regulate speech because
they are not non-public forums.
Facts. Fort Dix is a military post located in New Jersey. Generally, it is open to civilian
visitors. However, there is a local regulation that precludes speeches and demonstrations
of a partisan political nature. Respondent and some of his running mates sent a letter to
the General in charge of the base announcing their intent to distribute campaign literature
to the recruits living there. The General denied the request for access citing the
regulation.
Issue. Is the regulation of speech on a military base constitutional?
Held. Yes. The base is governmental property devoted to the training of soldiers; it is not
a public forum.
Dissent. The main purpose of the base does not preclude it from adhering to the mandate
of the 1st Amendment.
Discussion. The majority relies on the specific purpose and use of the military facility. It
is not open to the public for all purposes and serves primarily as a training base for
soldiers.
408 Lehman v. City of Shaker Heights
Lehman v. City of Shaker Heights
Citation. 418 U.S. 298 (1974).
Brief Fact Summary. Lehman (Petitioner) is running for political office and wants to
advertise on the public transit system.
Synopsis of Rule of Law. Public transportation advertising space is not a public forum
and may be regulated as long as it is not arbitrary.
Facts. The City of Shaker Heights (Respondent) operates a transit system. Inside each
transport area there are advertisement cards available for rent. Respondent frequently
sells the space to local commercial entities. But it refused to sell the space to Petitioner
for campaign promotions.
Issue. Does a public transit system have to accept paid advertisements from political
candidates?
Held. No. The Respondent may limit access to advertising space to avoid the appearance
of favoritism and the risk of imposing upon a captive audience.
Dissent. The advertisement cards are a public forum that cannot discriminate amongst
speakers.
Concurrence. Just because a utility is publicly owned does not make it a public forum.
Discussion. The majority declares the advertising cards to be part of the commerce of the
transit. But, the city has a responsibility to prevent the citizens from being subjected to
political speech while they are trapped in the cars. Furthermore, to avoid favoritism
Respondent would need to provide access to all political campaigns. This could become
an overwhelming endeavor to fairly supervise.
409 United States v. Kokinda
United States v. Kokinda
Citation. 497 U.S. 720 (1990).
Brief Fact Summary. The United States (Petitioner) prohibits the solicitation of
contributions on postal property.
Synopsis of Rule of Law. Solicitation is a protected form of speech subject to a
reasonableness test. It may not be barred simply because the public official opposes the
speaker's view.
Facts. Kokinda (Respondent) is a volunteer for the National Democratic Policy
Committee. She set up a table on the sidewalk outside a post office where she intended to
sell books and solicit contributions for the organization.
Issue. Can the government regulate this form of protected speech?
Held. Yes. This type of speech is disruptive to the activities of the post office.
Dissent. This is a public forum and the regulation is not a proper time, place, and manner
restriction.
Concurrence. The regulation is an appropriate time, place, and manner restriction. The
sidewalks are the same as regular public forum sidewalks.
Discussion. The sidewalk at issue here, is not a traditional public forum because the
sidewalk runs just from the parking lot to the post office. The sole purpose of the
walkway is to assist patrons to get from their cars to the building.
410 International Society for Krishna Consciousness, Inc. v. Lee
International Society for Krishna Consciousness, Inc. v. Lee
Citation. 505 U.S. 672 (1992).
Brief Fact Summary. The International Society for Krishna Consciousness, Inc.,
(Petitioner) was prohibited from distributing religious literature in a public airport.
Synopsis of Rule of Law. Airports are not public forums; therefore restrictions need only
be reasonable.
Facts. Petitioner participates in an annual "sankirtan" which is used to generate funds for
the religion. Lee (Respondent) was the commissioner of the port authority in charge of
implementing and enforcing the state regulation prohibiting solicitation in public airports.
Issue. Is an airport a public forum such that a regulation prohibiting solicitation in it
violates the United States Constitution?
Held. No. This ban on solicitation is reasonable to prevent travelers from being interfered
with unduly.
Discussion. The airport is not traditionally thought to be a public forum. The main
purpose of the airport is to provide a place where people can embark upon their travel.
They have no other choice than enter the airport and walk within it. To avoid Petitioner,
travelers would have to walk around or find alternative means of travel. This
infringement upon travel is a significant interest of the government that requires a degree
of monitoring activity.
411 Arkansas Educational Television Commission v. Forbes
Arkansas Educational Television Commission v. Forbes
Citation. 523 U.S. 666 (1998).
Brief Fact Summary. Forbes (Petitioner) was running for political office and was denied
the opportunity to participate in a television debate.
Synopsis of Rule of Law. The First Amendment does not compel public broadcasters to
provide access to programming for third parties.
Facts. Arkansas Educational Television Commission (Respondent) decided to broadcast
a political debate amongst the top congressional candidates. One hour was allotted for the
debate in a question and answer format. Respondent acquired enough signatures to be on
the ballot after Petitioner issued the initial invites. Respondent requested that he be
allowed to participate, but Petitioner still refused.
Issue. Because the government owned the television station was it obligated to open the
debate to all candidates?
Held. No. Although the speech was subject to the scrutiny of a non-public forum, the
television station still had the right to exercise journalistic judgment and limit the
participants.
Dissent. The television station created a public debate forum in which all candidates
should have had access. The majority decision gives the state the power to eliminate the
unpopular views without proper constitutional justification.
Discussion. The majority gives deference to the journalist to decide what to include in
the programming. Respondent was not banned from the debate because of his views.
Instead, he was not invited because there was a lack of public interest and support of his
candidacy in general.
412 Parker v. Levy
Parker v. Levy
Citation. 417 U.S. 733 (1974).
Brief Fact Summary. Levy (Respondent) is an Army physician who is being court-
martialed for making disparaging statements about the United States' involvement in
Vietnam.
Synopsis of Rule of Law. The fundamental necessity for obedience, and the consequent
necessity for imposition of discipline renders certain military regulations permissible that
would otherwise be prohibited by the United States Constitution.
Facts. Respondent is the Chief of Dermatological Service at the United States Army
Hospital at Fort Jackson. While examining enlistees for combat readiness he would often
express a negative sentiment about the war in Vietnam. Particularly, he stated that black
soldiers should not fight or join the military because they were subject to discrimination
in their own country and were being the first to be killed in Vietnam. Furthermore, he
claimed that the Special Forces lied to the soldiers and were murderers.
Issue. Is military regulation of speech constitutionally valid?
Held. Yes. A commissioned officer of the military has the responsibility to act in
accordance with and support the efforts of the military in time of war.
Dissent.
1 • Justice Douglas: The First Amendment was meant to protect the speech
of military as well as civilians. The ruling here allows a complete
censorship on all forms of speech not just that which could be disruptive.
2 • Justice Stewart: The military regulation is too vague to upheld as
constitutionally valid.
Discussion. The military has the authority to limit speech and opinion of leadership
conduct. By encouraging soldiers to be disobedient, Respondent could have disrupted
war efforts and derailed the objectives of the military.
413 Thornburg v. Abbott
Thornburg v. Abbott
Citation. 490 U.S. 401 (1989).
Brief Fact Summary. A prisoner was denied access to publications from the outside and
challenges the constitutionality of such a regulation.
Synopsis of Rule of Law. The government may restrict the speech of a prisoner as long
as the restriction is reasonably related to a legitimate penological interest.
Facts. The Federal Bureau of Prisons allows wardens to reject incoming publications that
might disrupt the security of the prison or otherwise encourage criminal activity. The
warden may not reject material simply because of its sexual, political, religious, or
repugnant expression.
Issue. Is this restraint on incoming publications rationally related to a legitimate and
content-neutral governmental objective?
Held. Yes. This regulation is valid under the reasonableness standard of scrutiny.
Dissent. This censorship prevents inmates from communicating with the outside world
and infringes upon their First Amendment rights.
Discussion. The goal is to maintain order within the prison system. Certain publications
could incite violence simply by being in the hands of an inmate. The warden reviews
each piece for its potential to incite the group and discarded accordingly. However, this
classification is never based solely on the content of the publication.
414 Shaw v. Murphy
Shaw v. Murphy
Brief Fact Summary. A prisoner wrote a fellow prisoner a letter containing legal advice.
The prisoner who wrote the letter was punished by prison officials for doing so.
Synopsis of Rule of Law. [Turner] does not allow "an increase in constitutional
protection whenever a prisoner's communication includes legal advice."
Facts. The Respondent, Kevin Murphy (the "Respondent"), was incarcerated at the
Montana State Prison. The Respondent worked as an "inmate law clerk". In this capacity,
he provided legal assistance to other prisoners. The Respondent assisted a fellow inmate
accused of assaulting a correctional officer. Prison rule forbid the Respondent from
working on the case, but he nonetheless investigated and sent a letter to the inmate
suspected of assault. The letter, according to prison policy, was intercepted. The
Petitioner, Robert Shaw (the "Petitioner") reviewed the letter. After his review, the
Petitioner cited the Respondent for various violations of the prison rules. A hearing was
conducted and the Respondent found guilty of violating certain prohibitions. The Court
of Appeals overruled the hearing office and found "inmate-to-inmate correspondence that
includes legal assistance would receive more First Amendment protection than
correspondence without any legal assistance."
Issue. "[W]hether prisoners possess a First Amendment right to provide legal assistance
that enhances the protections otherwise available under [Turner v. Safley]?
Held. No. Justice Clarence Thomas ("J. Thomas") drafted the majority opinion and
observed "[u]nder our decision in [Turner v. Safley] restrictions on prisoners'
communications to other inmates are constitutional if the restrictions are "reasonably
related to legitimate penological interests." J. Thomas concludes that [Turner] does not
allow "an increase in constitutional protection whenever a prisoner's communication
includes legal advice." The rationale for this conclusion is that the [Turner] factors do not
allow valuations of content, only "the relationship between the asserted penological
interests and the prison regulation." Construing whether communications containing legal
advice necessarily implicates content and is not appropriate. Additionally, "prison
officials are to remain the primary arbiters of the problems that arise in prison
management." Finally, "even [if the court] were to consider giving special protection to
particular kinds of speech based upon content, we would not do so for speech that
includes legal advice." Any expansion of First Amendment protection for prisoner legal
advice "would undermine prison officials' ability to address the 'complex and intractable'
problems of prison administration." Further, "[a]lthough supervised inmate legal
assistance programs may serve valuable ends, it is 'indisputable' that inmate law clerks
'are sometimes a menace to prison discipline' and that prisoners have an 'acknowledged
propensity ... to abuse both the giving and the seeking of [legal] assistance.; "
415 Shaw v. Murphy
Discussion. It is interesting to recognize the differences between the First Amendment
rights of prisoners and other individuals.
416 Tinker v. Des Moines Independent Community School District
Tinker v. Des Moines Independent Community School District
Citation. 393 U.S. 503 (1969).
Brief Fact Summary. Tinker (Petitioner) was suspended from school for showing his
support of the anti-war movement.
Synopsis of Rule of Law. Student speech may be regulated when such speech would
materially and substantially interfere with the discipline and operation of a school.
Facts. Petitioner was a high school student who joined his parents in protesting the
Vietnam War. The form of protest was to wear a black armband for a period of two
weeks during the holiday season. When Petitioner arrived at school he was told to
remove the armband or be suspended. He took the suspension and did not return to school
until after the protest period ended, New Year's Eve 1965.
Issue. Is symbolic speech by public school students protected under the First
Amendment?
Held. Yes. Students are persons worthy of constitutional protections both while in school
and out of school.
Dissent. The students are not wise enough to support or reject a cause. It is best to leave
the order of education to the administrator's judgment.
Discussion. The wearing of the armband was singled out of all other symbolic speech
engaged in by the student body. Clearly, this was designed to erase all opposition to the
war speech in the schools and was not related to any legitimate purpose. There was no
evidence that the wearing of the armbands caused any disruption of any class or school
function.
417 Bethel School District No. 403 v. Fraser
Bethel School District No. 403 v. Fraser
Citation. 478 U.S. 675 (1986).
Brief Fact Summary. A student gave a nominating speech in a general school assembly
that described another candidate with strong sexual metaphors.
Synopsis of Rule of Law. Schools may determine that certain modes of expression are
inappropriate and subject the speech to sanctions.
Facts. Fraser (Respondent) gave a speech nominating his friend for a student body office
at the school assembly. He described his friend's attributes by using sexually explicit
metaphors. Although a teacher reviewed the speech, and the speaker was warned against
giving the speech, Respondent chose to do it anyway. After the speech, one teacher
complained that he had to interrupt his regular class to explain and review sections of the
speech. Respondent was subsequently suspended from school for three days.
Issue. Is a high school student's lewd speech protected by the First Amendment?
Held. No. The Court held that "[t]he undoubted freedom to advocate unpopular and
controversial issues in schools and classrooms must be balanced against society's
countervailing interest in teaching students the boundaries of socially appropriate
behavior." Here, the student's First Amendment rights were outweighed by the school's
interest in outweighing vulgar and lewd speech. The student's interests were unrelated to
any political viewpoint, i.e., they were content neutral.
Dissent. The remarks by Respondent were not disruptive to the school's operations and
should not have been sanctioned.
Concurrence. The speech was not lewd. However, the speech exceeds the permissible
limits for this situation, a school assembly.
Discussion. Because the speech was explicit in nature and required some explaining to
the younger students, it disrupted the school's daily activities. Furthermore, the majority
determined that the role of schools is to teach socially appropriate behavior and speech. It
is within the school's sole discretion whether and how to punish such speech.
418 Hazelwood School District v. Kuhlmeier
Hazelwood School District v. Kuhlmeier
Citation. 484 U.S. 260 (1988).
Brief Fact Summary. A school principal censored a student newspaper by removing
some of the articles prior to publication.
Synopsis of Rule of Law. A school may exercise great control over school-sponsored
publications that students and members of the community might reasonably perceive to
bear the imprimatur of the school.
Facts. The advanced journalism class was responsible for writing the school paper.
Usually 4,500 copies were distributed to the school and members of the community. The
school principal always reviewed the page proofs prior to printing. On this occasion, he
objected to two of the articles scheduled for inclusion and decided to print the paper
without the articles. One described the pregnancy of students and included specific sexual
content while the other discussed the impact of divorce on students in the school. The
parents of the students did not consent to this article.
Issue. Did school officials violate the students' First Amendment rights by deleting two
pages of the school paper?
Held. No. The school administration had the right to control the style and content of
student speech when it is included in the school's expressive activities.
Dissent. Preserving the school's educational image is not a legitimate reason for
eliminating the articles. The articles were not proven to disrupt the operation of the
school in any way.
Discussion. The school has a vested interest in protecting its image and the educational
activities of the students. Therefore, it is not forced to promote the expressions of the
students simply because its sponsors the event or medium used. The school is allowed to
consider the emotional maturity of the audience when choosing to suppress certain forms
of speech.
419 National Association for the Advancement of Colored People v. State of Alabama, ex rel. Patterson
National Association for the Advancement of Colored People v. State of
Alabama, ex rel. Patterson
Citation. 357 U.S. 449 (1958).
Brief Fact Summary. The National Association for the Advancement of Colored People
(NAACP/Petitioner) was ordered to produce a membership list by the state court.
Synopsis of Rule of Law. Freedom of association to promote beliefs is insured by the
Fourteenth Amendment and is protected by adherence to strict scrutiny of any regulatory
interference.
Facts. Petitioner was ordered by a court to provide a full membership list, including
names and addresses. Although Petitioner agreed to provide a list of its officers and paid
staff members, it asserts that this list is protected and that it may assert the personal
privacy interests of each of its members. Additionally, Petitioner claims that disclosure
will serve as a restriction on lawful association of members that can only be justified by a
compelling state interest.
Issue. Can the state compel disclosure of the membership list of the NAACP?
Held. No. Disclosure of the list will subject members to adverse consequences including
economic, physical and other forms of public hostility. In essence, this will limit
Petitioner's members' ability to advocate their beliefs, and it will dissuade others from
joining the organization for fear of retribution.
Discussion. An association may assert the rights of its membership when the rights of the
individual members are tightly interrelated to the interest of the association.
420 Board of Regents of the University of Wisconsin System v. Southworth
Board of Regents of the University of Wisconsin System v. Southworth
Citation. 120 S.Ct. 1346 (2000).
Brief Fact Summary. College students are challenging the use of mandatory activity
fees to support organizations that they do not support.
Synopsis of Rule of Law. The First Amendment permits public universities to charge a
student activity fee to fund a viewpoint neutral fund program for extracurricular student
speech.
Facts. Southworth (Respondent) is a student at the University of Wisconsin. The
University of Wisconsin (Petitioner) collects $331.50 per year from each student. Eight
percent of this money supports the student health services, athletics, and to maintain the
student union. The other twenty percent supports registered student organizations,
including those engaged in political or ideological speech. Respondent objects to the
speech of some of these groups and does not want the fee to be used in such a manner.
Issue. Can Petitioner implement a mandatory student activity fee?
Held. Yes. Petitioner may implement the fee payment system to support the educational
mission and to foster a healthy environment of debate, a free exchange of ideas.
However, the funding of particular groups must be viewpoint neutral to be constitutional.
Here, it appears that the financial support for groups is based on majority vote of the
student body. This runs afoul of the United States Constitution because it blocks the
unpopular views from being treated the same as the majority views.
Discussion. Use public forum analysis in this case because of the similarity in
circumstance. Instead of demanding support the Respondent is requesting exemption
from speech. Because the funding program is content neutral the students have a
protected right to exclusion.
421 Roberts v. United States Jaycees
Roberts v. United States Jaycees
Citation. 468 U.S. 609 (1984).
Brief Fact Summary. Local Jaycees were threatened with expulsion from the national
group because they allowed women to hold full-time membership.
Synopsis of Rule of Law. Government may infringe upon the right to associate when the
regulation serves a compelling state interest that is unrelated to the suppression of ideas
and cannot be achieved through any less restrictive means.
Facts. The United States Jaycees' (Respondent) objective is to promote the growth of
civic organizations for young men. Members are men between the ages of 18 and 35.
Associate membership is available to older men and women. However, associates cannot
vote, hold office, or participate in leadership training.
In 1974, the Minneapolis chapter began admitting women as regular members. But the
national group refused to acknowledge their membership. Then in 1978, the national
group threatened to revoke the local chapter's membership because of the overt violation
of the organization by-laws. The Minnesota chapter argues that the by-laws violate the
Minnesota Human Rights Act that prohibits discrimination.
Issue. Does the state statute violate the freedom of association rights of Respondent?
Held. No. Respondent is a large organization that is not selective of its participants and
does not have the characteristics worthy of constitutional protection. The statute
interferes with the organizations infrastructure but is justified by the compelling state
interest in eliminating discrimination. Respondent already allows women as associate
members, so this does not represent an overly burdensome change.
Discussion. An association is protected if it involves items related to family such as
marriage, education of children, or general personal liberty. These groups tend to be
small and highly selective in decision-making. But large business like organizations do
not embody the constitutional protection of personal liberty interests. Some of the
relevant factors to use in determining whether an association will be immune from some
regulation are the size, purpose, policies, selectivity, and congeniality of the group.
422 Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston
Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston
Citation. 515 U.S. 557 (1995).
Brief Fact Summary. A gay rights group requested permission, but was denied the right
to march in the city's St. Patrick's Day parade.
Synopsis of Rule of Law. The government may not compel a private speaker to alter its
message to include generally accepted views.
Facts. Since 1947, the South Boston Allied War Vets Council, a private organization, has
received a permit to run the St. Patrick's Day parade. Until 1992, the city permitted the
group to use the city seal, provided printing services, and direct funding.
In 1992, Irish-American Gay, Lesbian and Bisexual Group of Boston (Respondent) was
formed and requested access to march in the parade. Hurley (Petitioner) denied the
request and Respondent obtained a court order for inclusion. In 1993, Respondent was
again refused access and subsequently filed suit.
Issue. Is state law requiring inclusion of gay rights marchers in a privately organized
parade constitutional?
Held. No. The parade composition represents the organizers choice of expression. It is
beyond government power to control the speech of private individuals or organizations
when the organization does not agree with or believe in the message conveyed.
Discussion. Parades are a form of expression because the march intends to convey a
message and is not just movement of people from one location to another. Since the
parade was privately organized, Petitioner had the right to choose the parade's message
and participants to the exclusion of others. The lack of a concentrated theme does not
lead to a forfeiture of this constitutional protection of speech.
423 Boy Scouts of America v. Dale
Boy Scouts of America v. Dale
Citation. 120 S.Ct. 2446 (2000).
Brief Fact Summary. Dale (Respondent) had his status as a troop leader revoked
because he is gay.
Synopsis of Rule of Law. Freedom of expressive association is violated when a
regulation significantly affects the organizations ability to advocate its viewpoints. Great
deference is given to the organization in determining whether a regulation infringes upon
its expression.
Facts. Respondent was an Eagle Scout and a troop leader when his membership was
revoked because the Boy Scouts of America (Petitioner) learned that he is gay.
Respondent was a scout until he turned eighteen when he went away to college. While a
freshman at Rutgers University, Respondent became openly gay and was the co-president
of the gay rights group on campus. He was interviewed for a local newspaper article that
identified him as a gay leader. Later that month he received a letter from Petitioner
revoking his adult membership citing the forbiddance of homosexual members.
Issue. Does New Jersey law forcing Petitioner to admit homosexuals as members violate
its First Amendment right of freedom of association?
Held. Yes. This law forces Petitioner to approve a message to which it does not agree.
Such a regulation is an unlawful restraint on the association and the characteristics of a
"clean" life that it supports.
Dissent. Petitioner's oath and by-laws make no specific mention of the organization's
attitude towards homosexuals. In fact, it encourages scout leaders to send curious boys to
others for sex education questions. The majority ruling creates a constitutional shield of
prejudice.
Discussion. Expressive associations are protected from forced membership. To be an
expressive association an organization must engage in some form of expression.
Petitioner seeks to instill and instruct young boys in making choices based on the scout
oath. This purpose is expressive conduct that makes Petitioner and expressive
associations. Petitioner clearly opposes homosexuality and believes that it is at odds with
a "morally straight" and "clean" lifestyle. By accepting Respondent, Petitioner would be
endorsing a message it clearly opposes and be impairing its freedom of expression.
424 Minneapolis Star and Tribune Company v. Minnesota Commissioner of Revenue
Minneapolis Star and Tribune Company v. Minnesota Commissioner of
Revenue
Citation. 460 U.S. 575 (1983).
Brief Fact Summary. The state imposed a special use tax on certain newspapers.
Synopsis of Rule of Law. Differential taxation of the press is prohibited unless the state
has a compelling objective that cannot be achieved without it.
Facts. Minneapolis Star (Petitioner) publishes a morning and evening paper. From1967
until 1971 it was exempt from the general state sales tax. In 1971, the state legislation
imposed a special use tax on the cost of paper and ink while the sales tax exemption was
continued. Then in 1974, the use tax was amended so that the first $100,000.00 of ink and
paper used per year were exempt. This resulted in a $4,000.00 annual tax credit for each
paper. Petitioner represented nearly two-thirds of the total amount collected.
Issue. Is tax of ink and paper unconstitutional restriction of free speech?
Held. Yes. Minnesota's tax violates the First Amendment because it singles out the press
and targets certain newspapers. The sales tax exemption results in a penalty for only a
few of the very large papers. Without a proper justification for this particular tax
application, the law is an unconstitutional restraint of the press.
Dissent. The use tax has been less burdensome than the sales tax and does not hinder the
freedom of the press. In fact, this regulation has encouraged the growth of the press by
allowing smaller papers to join or remain in the market.
Discussion. Use tax is facially discriminatory as it focuses only on certain publications.
By doing so, the state has singled out the press for special tax treatment. This treatment is
unconstitutional because it gives the state extra power over the targeted taxpayer and
effectively censors the press. Furthermore, no explanation is given for why this
alternative tax was implemented instead of applying the general sales tax.
425 Cohen v. Cowles Media Company
Cohen v. Cowles Media Company
Citation. 501 U.S. 663 (1991).
Brief Fact Summary. Cohen (Petitioner) provided documents to the media on the
promise that he would not be identified as the source of the information.
Synopsis of Rule of Law. General principles of law are applicable to the press under the
United States Constitution even though they have incidental effects on data gathering and
reporting.
Facts. Petitioner was a Republican gubernatorial campaign worker in 1982. He offered
documents to the press relating to competing candidate. The documents indicated that the
subject was charged with unlawful assembly and convicted of petit theft. In exchange for
these documents, Petitioner insisted upon anonymity. Cowles Media Company
(Respondent) agreed to this term but later found that the charges were dismissed or
vacated. Respondent chose to run the story anyway and used Petitioner's name as the
source of the data. When the articles were published, Petitioner was fired from his job.
Issue. Is the press exempt from basic contractual law for breach of promise of
confidentiality?
Held. No. Promissory estoppel is generally applicable to all citizens of Minnesota
including the press.
Dissent. The promise of confidentiality is not as important as the exposure to the news
and the prevention of censorship due to the general application of the law. The press
should be exempt from liability associated with researching the news.
Discussion. News reporters are still required to adhere to the law when pursuing a story.
They may not engage in criminal activity and expect immunity for their actions by
claiming an infringement of freedom of the press. Likewise, laws are not subject to a
higher level of scrutiny when applied to the press than would apply to other persons.
426 Branzburg v. Hayes
Branzburg v. Hayes
Citation. 408 U.S. 665 (1972).
Brief Fact Summary. Two different reporters refuse to answer grand jury questions,
which required the identification of their confidential sources.
Synopsis of Rule of Law. News reporters are not exempt from appearing before a grand
jury and answering questions.
Facts. Branzburg (Petitioner) was a staff reporter for a daily Louisville newspaper. He
authored an article describing the production of marijuana. The article ran in the paper
and included a picture of hands processing hashish. Petitioner promised not to reveal the
processors but was subpoenaed before a grand jury to reveal the sources. He refused.
Pappas (Petitioner) televised a speech given by a Black Panther leader from their
headquarters. Petitioner was given unrestricted access to the facility in exchange for
agreeing not to disclose anything he saw or heard while there. He was permitted to report
on an anticipated police raid. He was later subpoenaed and refused to testify.
Issue. Is it unconstitutional to require news reporters to disclose the identity of their
sources before a grand jury?
Held. No. There is no restraint on speech or publication caused by this law. The integrity
of confidential relationships remains as they always have been except when the
interrogation involves criminal activity by the source.
Dissent. The reporter has a right to a confidential relationship with the source that is
supported by public interest in the marketplace of information. The right to
confidentiality must be recognized in cases when an informant is required to gather the
news, when confidentiality is essential to data capture, and when absence of
constitutional protection of the relationship will deter publication of information.
Concurrence. News reporters may still safeguard sources by appropriate use of a
protective order or a motion to quash the subpoena.
Discussion. To force identification is to restrict speech because informants will be less
likely to speak when they know they will be exposed. But, there is no restraint on speech
at all. Reporters are free to publish whatever they choose. The United States Constitution
does not support the notion of an idle bystander to a crime. If one knows something, then
he is obligated to aid justice.
427 Red Lion Broadcasting Co. v. Federal Communications Commission
Red Lion Broadcasting Co. v. Federal Communications Commission
Citation. 395 U.S. 367 (1969).
Brief Fact Summary. A radio station was forced to provide free airtime to a book author
whose character was attacked on the air.
Synopsis of Rule of Law. Requiring broadcasters to provide rebuttal time for personal
attacks is constitutional.
Facts. The Federal Communications Commission (FCC/Respondent) required radio and
television stations to discuss public issues and present each side fairly, when it
implemented the Fairness Doctrine. Red Lion Broadcasting Co. (Petitioner) operates a
radio station that aired the "Christian Crusade" series. During one broadcast the speaker
commented that the author of a book about Barry Goldwater was fired from a job for
making false statements, and stated that he worked for the Communist party. The author
felt personally attacked and demanded free airtime to reply. This was refused.
Respondent determined that the comments were a personal attack and that Petitioner must
give the author rebuttal time.
Issue. Can the government require the press to provide equal rebuttal time to victims of
personal attacks made during prior broadcasts or publications?
Held. Yes. It is constitutional to obligate radios' licensees to provide time and attention to
matters of public concern. The Fairness Doctrine simply enforces the obligation to the
community that is owed by one who is granted a license for a limited publicly beneficial
property.
Discussion. Broadcast frequencies are limited commodities that require government
regulation to control. Because of the limited space, licenses were not issued to all who
requested one. Therefore, those who are licensed have a greater duty to give time to all
viewpoints equally and not censor what is unpopular. The most important consideration
is the right of listeners to be informed and exposed to the "marketplace of ideas."
428 Miami Herald v. Tornillo
Miami Herald v. Tornillo
Citation. 418 U.S. 241 (1974).
Brief Fact Summary. Tornillo (Respondent) requested space in the paper to respond to
editorials that ran the previous two weeks.
Synopsis of Rule of Law. Infringing upon the editorial functions of a paper is
unconstitutional. The government may not compel equal rebuttal access to print media on
behalf of political candidates.
Facts. Respondent was a candidate for the Florida House of Representatives in 1972. The
Miami Herald (Petitioner) ran two editorials in two weeks that were critical of
Respondent. Respondent demanded rebuttal space and was denied. Respondent brought
action under the state statute of "right of reply" that guarantees candidates conspicuous
space in the paper to reply to attacks o character or official function by the newspaper.
Issue. Is it unconstitutional to require a newspaper to grant a politician criticism reply
space?
Held. Yes. This statute impedes the freedom of press guaranteed by the First
Amendment. The function of the editor is curtailed, tuning the paper into nothing more
than a passive conduit for communication.
Discussion. Most television and newspapers are owned by one company, which is
leading to the monopolization of the airwaves and encourages censorship. However,
responsible ownership cannot be legislated and is not mandated by the United States
Constitution. The result of this statute is a financial penalty for publishing material that is
critical of an individual. This could lead to political censorship for fear of financial
retribution.
429 Richmond Newspapers v. Virginia
Richmond Newspapers v. Virginia
Citation. 448 U.S. 555 (1980).
Brief Fact Summary. A courtroom was closed to the press during a murder trial.
Synopsis of Rule of Law. Criminal trials must be open to the public unless there is a
persuasive, articulated interest in closing them.
Facts. A murder suspect was tried four times in the same court. At the beginning of the
fourth trial, the counsel for the defense asked that the press be removed from the
courtroom. The prosecution voiced no objection and left it to the discretion of the court.
The trial was then ordered closed to the public.
Issue. Is the right of public and press access to criminal trials guaranteed?
Held. Yes. This right is guaranteed by the First Amendment as an important aspect of
freedom of speech.
Dissent. There is no provision of the United States Constitution that prohibits the closing
of a trial when all parties agree to such action.
Concurrence. Because there is a grand tradition of public trials, clearly the United States
Constitution meant to maintain and protect that practice.
Discussion. Historically, criminal trials have been open to the public. It ensures that
proceedings are fair and not prejudiced by partiality. It also allows the community to heal
by proving an outlet for "concern, hostility, and emotion." The right to speak about trials
would be quashed if arbitrary courtroom closures were allowed to occur. The right of
public attendance of a trial is not enumerated by the Constitution but it is, nonetheless,
recognized as a First Amendment right.
430 Pell v. Procunier
Pell v. Procunier
Citation. 417 U.S. 817 (1973).
Brief Fact Summary. Members of the press were denied access to interview prison
inmates in a face-to-face format.
Synopsis of Rule of Law. The First Amendment does not guarantee the press special
access to places not generally open to the public. The press has no right of access to
prisons or inmates beyond what is given to the public.
Facts. Pell (Petitioner) challenges the constitutionality of the California code prohibiting
press interviews with prison inmates. All requests to interview inmates in California
prisons were denied.
Issue. Is it unconstitutional to prohibit the media physical access to prison inmates?
Held. No. The information sought can still be acquired via alternative means of
communication. Therefore, the freedom of press is not denied in any way.
Dissent. This regulation improperly restrains the press from reporting on governmental
conduct.
Discussion. The right to speech includes the right to communicate to any willing listener
including members of the press. In this case, inmates could communicate via mail with
the press. The state legitimately limits visitors to those who will be helpful in the
rehabilitation of the inmate. The state interest in maintaining security of the facilities
outweighs the right to speak to the press especially since there are viable alternative
means of communication.
431 Houchins v. KQED
Houchins v. KQED
Citation. 438 U.S. 1 (1978).
Brief Fact Summary. A television station was denied access to a county jail where an
inmate committed suicide.
Synopsis of Rule of Law. The press has no greater constitutional right to access penal
facilities than any member of the general public.
Facts. Houchins (Petitioner) is the Sheriff of Alameda County and controls access to the
county jail. KQED (Respondent) operates a radio and television station. Respondent
reported that a county jail prisoner committed suicide. The report included a statement by
a psychiatrist that the jail condition was responsible for the prisoner actions. Respondent
requested permission to inspect and photograph the facility but was denied. At the time
there was no formal policy regarding public access to the jail. But Petitioner established
tours of the facility that was open to the public. Not all areas were viewed and no
recording devices were permitted on the tour.
Issue. Does the press have a constitutional right of access to a county jail that is greater
than a private individual?
Held. No. The United States Constitution does not confer a greater right of access to
information on the press. The media is equivalent to any member of the general public.
Dissent. The existence of the constitutional violation should not have been decided as a
right to access question because both the public and the press were denied equally. The
jail purposefully denied access to all to eliminate all first hand reports of conditions in
violation of the First and Fourteenth Amendments.
Concurrence. The concurrence agrees with the judgment, but stated that Respondent was
entitled to injunctive relief. As the substitute for the majority of the public, the press
needs to use cameras and sound equipment to accurately describe the jail conditions.
Discussion. Although the press serves as the "eyes and ears of the public" it does not
enjoy unlimited access to information. Limiting access does not infringe upon the
freedom of the press to communicate or publish. They have alternative sources of
determining the conditions of the penal facilities in the state. Furthermore, the amount of
public access to jails is a policy issue that should be decided by the legislature and not the
courts.
432
CHAP
TER
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First
Amen
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433 United States v. Seeger
United States v. Seeger
Citation. 380 U.S. 163 (1965)
Brief Fact Summary. The scope of the phrase "Supreme Being" in a conscientious
objector statute was at issue.
Synopsis of Rule of Law. "[T]he test of belief 'in a relation to a Supreme Being' is
whether a given belief that is sincere and meaningful occupies a place in the life of its
possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies
for the exemption."
Facts. The Petitioner, Daniel Seeger (the "Petitioner"), was convicted in district court for
the Southern District of New York of refusing to serve in the armed forces. The Petitioner
first claimed conscientious objector status in 1957. Section 6(j) of the Universal Military
Training and Service Act (the "Act"), "exempts from combatant training and service in
the armed forces of the United States those persons who by reason of their religious
training and belief are conscientiously opposed to participation in war in any form." The
term " religious training and belief" is defined as "an individual's belief in a relation to a
Supreme Being involving duties superior to those arising from any human relation, but
(not including) essentially political, sociological, or philosophical views or a merely
personal moral code." The Petitioner stated "he was conscientiously opposed to
participation in war in any form by reason of his 'religious' belief; that he preferred to
leave the question as to his belief in a Supreme Being open, 'rather than answer 'yes' or
'no"; that his 'skepticism or disbelief in the existence of God' did 'not necessarily mean
lack of faith in anything whatsoever'; that his was a 'belief in and devotion to goodness
and virtue for their own sakes, and a religious faith in a purely ethical creed.' He cited
such personages as Plato, Aristotle and Spinoza for support of his ethical belief in
intellectual and moral integrity 'without belief in God, except in the remotest sense.' " The
Petitioner's claim for conscientious objector status was denied because it was not based
upon a "belief in a relation to a Supreme Being".
Issue. Whether the definition of "religious training and belief" in Section 6(j) of the Act
is constitutional?
Held. The court first observed it was very hard to discern Congress's intent in using the
phrase "Supreme Being", considering there are so many different religious sects viewing
god in so many different ways. "This vast panoply of beliefs reveals the magnitude of the
problem which faced the Congress when it set about providing an exemption from armed
service. It also emphasizes the care that Congress realized was necessary in the
fashioning of an exemption which would be in keeping with its long-established policy of
not picking and choosing among religious beliefs." The court concluded "Congress, in
using the expression 'Supreme Being' rather than the designation 'God,' was merely
clarifying the meaning of religious training and belief so as to embrace all religions and
to exclude essentially political, sociological, or philosophical views." As such, "the test of
belief 'in a relation to a Supreme Being' is whether a given belief that is sincere and
434 United States v. Seeger
meaningful occupies a place in the life of its possessor parallel to that filled by the
orthodox belief in God of one who clearly qualifies for the exemption." "Where such
beliefs have parallel positions in the lives of their respective holders we cannot say that
one is 'in a relation to a Supreme Being' and the other is not.' "
Discussion. It is interesting to recognize how religious beliefs are defined when it comes
to conscientious objector status.
435 United States v. Ballard
United States v. Ballard
Citation. 322 U.S. 78 (1944).
Brief Fact Summary. Ballard (Respondent) was charged with defrauding the public by
practicing a religion that he knew was false.
Synopsis of Rule of Law. Religion is determined by the sincerity and depth of the belief,
not by whether it is true or false.
Facts. Respondent was convicted of using the mail to defraud the public. He organized a
religious group. He claimed that he had supernatural powers to heal the sick and diseased.
The charge indicated that Respondent knew that these claims were false.
Issue. Is Respondent being unconstitutionally persecuted for his religious beliefs?
Held. Yes. Although Respondent's religion seems incredible to most, it is not the role of
a jury to determine its veracity. If this religion were subject to such a trial, then all
organized religions would need to be treated similarly.
Dissent. The government cannot prove that Respondent knew something was false when
it opts to separate religious sincerity from verity.
Discussion. The First Amendment protects the right to choose and practice a religion of
the individual's choice. This includes freedom to believe and freedom to act. Just because
a religious doctrine cannot be proven does not mean that it is not a religion and not
protected by the United States Constitution.
436 Employment Division, Department of Human Resources of Oregon v. Smith
Employment Division, Department of Human Resources of Oregon v.
Smith
Citation. 494 U.S. 872 (1990).
Brief Fact Summary. Smith (Respondent) was denied unemployment benefits because
he uses peyote as part of his religion.
Synopsis of Rule of Law. Free exercise of religion does not preclude adherence to valid,
nondiscriminatory laws and regulations.
Facts. Oregon prohibits possession of controlled substances without a prescription.
Peyote is on the list of controlled substances. Respondent, a member of the Native
American Church was fired from his job for using peyote as part of a religious ceremony.
Respondent then filed for unemployment benefits but was denied because of his
"misconduct."
Issue. Can the state criminally prohibit the religious use of peyote under the Free
Exercise Clause?
Held. Yes. The law is applied to all citizens equally regardless of religious belief. It was
not designed to impede upon the religious practice of the Native American Church.
Dissent. The majority narrowly defined free exercise. The fact that Respondent's
religious ceremony has been outlawed is an unconstitutional restraint on his right to
practice his religion.
Concurrence. This state law is tied to a legitimate, compelling state interest in
eliminating illegal drug use and its secondary criminal effects. This goal outweighs any
incidental religious ceremonial use of peyote.
Discussion. Free exercise of religion includes the right to believe whatever religion one
chooses. The state may not prohibit acts simply to eliminate a particular religion. On the
other hand, religious beliefs do not excuse individuals compliance with the law. The state
must have the power to generally enforce laws regardless of religious beliefs or else it
will lead to the development of an elaborate scheme of exceptions with no rule.
437 Sherbert v. Verner
Sherbert v. Verner
Citation. 374 U.S. 398 (1963).
Brief Fact Summary. Sherbert (Petitioner) was denied unemployment benefits because
she refused to work on Saturdays.
Synopsis of Rule of Law. A state may not deny unemployment benefits to a citizen
because her religions convictions require an observance of a day of rest.
Facts. Petitioner was fired for refusing to work on Saturdays, the Sabbath of her religion.
She later filed for unemployment because she unable to find a job that did not require
Saturday work. Respondent determined that Petitioner was not eligible for benefits
because of her Saturday restriction.
Issue. Is the state restraint on unemployment benefits constitutional?
Held. No. Petitioner is being penalized for practicing her religion. She is forced to forfeit
benefits because she refuses to sacrifice her religious conviction. To be valid this
regulation would need to survive strict scrutiny analysis.
Dissent. The majority ruling means that a state is obligated to provide financial support,
and provides an exception based on religion. This may violate limits on state
entanglement with religion.
Discussion. Generally, the state may regulate expressions that pose a serious threat to
pubic safety, peace, or order. This will include actions that manifest a religious belief or
doctrine, but cannot be intended to quash the practices of a religion. The disqualification
for benefits burdens the free exercise of religion. Petitioner is forced to choose between
earning a living and practicing her religion.
438 Church of the Lukumi Babala Aye v. City of Haileah
Church of the Lukumi Babala Aye v. City of Haileah
Citation. 508 U.S. 520 (1993).
Brief Fact Summary. The city passed an ordinance outlawing animal sacrifice for
religious purposes.
Synopsis of Rule of Law. The Free Exercise Clause forbids subtle departures from
neutrality and covert suppression of a particular religious belief.
Facts. The Church of the Lukumi Babala Aye (Petitioner) practices the Santeria religion
wherein a principal form of devotion is animal sacrifice. The animals are killed by
severing the carotid arteries in the neck. Later, the animal is cooked and eaten.
In 1987, Petitioner leased land from the City of Hialeah (Respondent) to build a house of
worship. The community objected, and the city council passed an ordinance prohibiting
all animal sacrifice for religious ceremonies citing a danger to the public health, safety,
and welfare of the community.
Issue. Is the city ordinance prohibiting animal sacrifice constitutional?
Held. No. The ordinance was developed in response to community outcry against the
practice of Santeria. The interest in preventing cruelty to animals could have been
achieved through alternative means than a complete ban on this religion.
Discussion. A law that is neutral and generally applicable does not have to be justified by
a compelling state interest. But when the law targets activity because of its religious
nature it will be held invalid unless there is a compelling governmental interest and it is
narrowly tailored to advance that interest.
The law here is not neutral on its face. It includes explicit reference to sacrifice and
religious ritual. The goal of the ordinance was to prevent the practice of Santeria in the
city.
439 Locke v. Davey
Locke v. Davey
Citation. __U.S.__, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004)
Brief Fact Summary. A state created a scholarship program, and in accordance with the
state constitution, forbid students pursuing a degree in devotional theology from access to
the funds.
Synopsis of Rule of Law. The Free Exercise Clause of the First Amendment of the
United States Constitution (the "Constitution"), is not violated when a state creates a
scholarship program, and does not allow students pursuing "a degree in doctrinal
theology" access to the monies from the program.
Facts. The Respondent in this matter was awarded a Promise Scholarship. He chose to
attend a private Christian college in an attempt to become a church pastor. The state of
Washington, in accordance with its state constitution, did not allow students to "use the
scholarship at an institution where they are pursuing a degree in devotional theology."
The Court of Appeals held the state of Washington improperly "singled out religion for
unfavorable treatment." As such, under the [Lukumi] decisions, Washington's "exclusion
of theology majors must be narrowly tailored to achieve a compelling state interest".
Issue.
1 • Does the lack of access to funds from the state of Washington's Promise
Scholarship Program by students pursuing a degree in devotional theology,
violate the Free Exercise Clause of the First Amendment of the Constitution?
Held.
1 • No. Justice William Rehnquist ("J. Rehnquist") writing for the majority
observed "an exclusion from an otherwise inclusive aid program does not
violate the Free Exercise Clause of the First Amendment." J. Rehnquist
observed how the state of Washington solely chose not to "fund a distinct
category of instruction" not impose "criminal nor civil sanctions on any type
of religious service or rite." J. Rehnquist disagreed with Judge Antonin
Scalia's ("J. Scalia") dissenting opinion and found that just because training
for "all secular professions" were funded, a state did not have to "also fund
training for religious professions." Unlike the [Lukumi] decisions, where
hostility towards religion was manifest, J. Rehnquist believed "the entirety of
the Promise Scholarship Program goes a long way toward including religion
in its benefits." The majority concluded "[t]he State's interest in not funding
the pursuit of devotional degrees is substantial and the exclusion of such
funding places a relatively minor burden on Promise Scolars."
Dissent.
440 Locke v. Davey
1 • J. Scalia filed a dissenting opinion with Justice Clarence Thomas ("J.
Thomas"), arguing that the [Lukumi] decisions and this case are
irreconciliable. Specifically, that the majority sustained a "public benefits
program that facially discriminates against religion."
Discussion. It is interesting to compare this decision, with the Supreme Court's previous
[Lukumi] decisions and examine how the majority and dissenting judges construe the
decisions.
441 County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter
County of Allegheny v. American Civil Liberties Union Greater
Pittsburgh Chapter
Citation. 492 U.S 573 (1989).
Brief Fact Summary. Religious holiday decorations were displayed on some of the city's
major governmental buildings.
Synopsis of Rule of Law. Government may not endorse a particular religion.
Endorsement is determined by the context of the use of religious symbols.
Facts. A crèche was placed on the staircase of the Allegheny County Courthouse, and a
Chanukah menorah was placed in the grounds of the City-County Building next to a
Christmas tree.
Issue. Are the government displays of religious symbols constitutional?
Held. The crèche is unconstitutional because nothing detracts from its clearly religious
meaning. However, the menorah's presence next to a Christmas tree presents a holiday
theme and not just a Jewish holiday specifically.
Dissent.
1 • Justice Brennan: A display that maintains its religious meaning violates
the United States Constitution's requirement of the separation of church
and state.
2 • Justice Stevens: The Establishment Clause prohibits displays of religious
symbols on public property.
Concurrence. The plurality of religious displays only acknowledges the holiday season.
It does not specifically endorse one religion over another.
Discussion. The effect of the displays is measured by whether a regular citizen could
perceive the display to be an endorsement of a certain religion or a disapproval of others.
But the constitutional problem is not solved by the state celebrating each religious
holiday.
442 Larson v. Valente
Larson v. Valente
Citation. 456 U.S. 228 (1982).
Brief Fact Summary. Certain charitable organizations were required to provide a
financial disclosure statement while others were not.
Synopsis of Rule of Law. Under the Establishment Clause one religion cannot be
preferred over another.
Facts. Larson (Petitioner) was responsible for the implementation of the Minnesota
Charitable Solicitation Act (Act). This Act regulated charitable organizations that receive
funds from the public. In 1978, the 50% rule was instituted that required all religious
organizations receiving more than 50% of all contributions from non-members to make a
full financial disclosure each year.
Issue. Does state statute discriminate amongst religious organizations in violation of the
Establishment Clause?
Held. Yes. The 50% rule is arbitrarily drawn and based on three flawed premises: 1)
when members contribute they will supervise solicitation activities carefully; 2)
membership control is an adequate safeguard against fraudulent activity; and 3) the need
for public disclosure increase with outside donation amounts.
Discussion. Freedom of religion would not exist if the state were allowed to provide
favorable treatment to certain religions. The Establishment Clause requires legislatures
and citizens to treat all religions with the same respect and deference they afford their
own.
443 Lemon v. Kurtzman
Lemon v. Kurtzman
Citation. 403 U.S. 602 (1971).
Brief Fact Summary. The state reimburses parochial schools for certain expenses
associated with the education of its children.
Synopsis of Rule of Law. To be valid, a statute must have a secular legislative purpose,
must not advance or inhibit religion, and must not excessively entangle church and state.
Facts. Pennsylvania has a statute that reimburses religious schools for teacher salaries,
textbooks, and other instructional materials. Rhode Island has a similar statute that allows
the state to pay private school teachers a 15% salary supplement.
Issue. Is it constitutional for the state to provide financial assistance to religious schools
for the cost of teaching secular subjects?
Held. No. The statutes result in excessive entanglement between the government and
religion. Excessive entanglement is determined by the character and purpose of the
institution benefited, the nature of the aid given, and the resulting relationship between
the government and church.
Discussion. The framers of the United States Constitution specifically and purposefully
prohibited the establishment of a state church because of the inherent problems. The
Establishment Clause was designed to avoid state "sponsorship, financial support, and
active involvement of the sovereign in religious activity."
444 Rosenberger v. Rector and Visitors of the University of Virginia
Rosenberger v. Rector and Visitors of the University of Virginia
Citation. 515 U.S. 819 (1995).
Brief Fact Summary. A student group challenged the University's decision to stop
paying its printing bills because the group expressed religious views.
Synopsis of Rule of Law. The state may not exercise viewpoint discrimination even
when the limited public forum was created by the state.
Facts. A registered student group may submit its bills to the University of Virginia
(Respondent) for payment as long as the organization is not classified as a religious or
political group. Each semester every undergraduate student is charged a mandatory fee of
$14.00 to help support the cost of student organizations. Rosenberger's (Petitioner's)
group was recognized as a registered student organization. However, Respondent refused
to pay the printing bill for the publication of the group's magazine because Respondent
deemed it a religious activity.
Issue. Did Respondent violate the First Amendment by refusing to authorize payment for
the printing of a religious student magazine?
Held. No. Viewpoint based restrictions are not proper when a university allocates funds
to encourage a diversity of views from private speakers. By prohibiting viewpoint
discrimination this holding does not infringe upon the Respondent's right to speech.
Discussion. When the government creates a forum for speech it may exclude a class of
speech based on content if the limitation preserves the purpose of the forum. But
viewpoint discrimination is not permitted when the speech would otherwise be included
in the limited forum. Respondent's denial of funding to Petitioner is viewpoint
discrimination because the guidelines of the fund do not exclude religion as a subject
matter. More importantly, Petitioner was never classified as a religious organization. If it
had been, it would have never been recognized as an official student organization.
445 Santa Fe Independent School District v. Doe
Santa Fe Independent School District v. Doe
Citation. 120 S. Ct. 2286 (2000).
Brief Fact Summary. A group of public high school students are opposed to pre-game
prayers before football games.
Synopsis of Rule of Law. The state cannot force sponsored religious activity on its
citizens by forcing them to choose between attendance and their own constitutionally
protected rights.
Facts. Doe (Respondent) includes a number of current and former students both Mormon
and Catholic who oppose prayer before each football game. Santa Fe (Petitioner)
developed a policy that authorized two student elections. One was held to determine
whether "invocations" should be delivered before the games, and the second one was to
select a student prayer leader.
Issue. Does student lead prayers at public high school football games violate the
Establishment Clause?
Held. Yes. Delivery of a pre-game prayer forces the audience to participate in religion.
The prayer content, the speaker, and whether to have a prayer were all supported by
school policy and endorsed by the school administration. There is no clear separation of
church and state as required by the United States Constitution.
Dissent. The school policy has a plausible secular purpose that should be deferred to and
not discarded as the school district voters see the legitimacy of this purpose.
Discussion. Pre-game invocations are not "private speech" because they are authorized
by government policy and take place on government property at a government-sponsored
event. They are not the type of forum discussed in Rosenberger because the pre-game
activity is not open to indiscriminate use. By creating the policy, Respondent has a
significant level of involvement that makes it clear that Respondent encourages the
practice of religion.
446 Engel v. Vitale
Engel v. Vitale
Citation. 370 U.S. 421 (1962)
Brief Fact Summary. Students in a certain school district were encouraged to say a
nondenominational prayer prior to classes each morning. If a student did not want to say
the prayer, they could remain silent or leave the room.
Synopsis of Rule of Law. "There can be no doubt that New York's state prayer program
officially establishes the religious beliefs embodied in the Regents' prayer."
Facts. The Respondent, the Board of Education of Union Free School District No. 9,
New Hyde Park, New York (the "Respondent"), required the School District's principal to
encourage all student classes to say a prayer every morning. The prayer read: "Almighty
God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us,
our parents, our teachers and our Country." If a student did not want to say the prayer
they could remain silent or leave the room. This prayer was recommended by the State
Board of Regents (the "Board") and made part of their "Statement on Moral and Spiritual
Training in the Schools." The Board was created by the State Constitution and had "broad
supervisory, executive, and legislative powers over the State's public school system."
Issue. Did the Respondent's adoption of the Regent's prayer violate the Establishment
Clause of the United States Constitution?
Held. Yes. Justice Hugo Black ("J. Black") first recognized that the Respondent's
adoption of the Board's prayer was indisputably a religious activity. Second, J. Black
found that the New York state law allowing for such a prayer to be said in school
"breache[d] the constitutional wall of separation between Church and State." The
majority observed "the constitutional prohibition against laws respecting an establishment
of religion must at least mean that in this country it is no part of the business of
government to compose official prayers for any group of the American people to recite as
a part of a religious program carried on by government." J. Black found support for his
decision in the negative experience the British had when attempting to establish a "Book
of Common Prayer." As a result of that policy, many people left Great Britain and came
to the United States to practice their religion, not the governments prescribed religion,
freely. J. Black also found it was irrelevant that students did not need to participate in the
prayer and could remain silent or leave the room. Also, that the prayer was
denominationally neutral. Further, "[i]t is neither sacrilegious nor antireligious to say that
each separate government in this country should stay out of the business of writing or
sanctioning official prayers and leave that purely religious function to the people
themselves and to those the people choose to look to for religious guidance."
Dissent. Justice Potter Stewart ("J. Stewart") filed a dissenting opinion arguing that the
brief nondenominational prayer did not violate the United States Constitution (the
"Constitution"). J. Stewart could not see "an 'official religion' [being] established by
447 Engel v. Vitale
letting those who want to say a prayer say it." J. Stewart argued "that to deny the wish of
these school children to join in reciting this prayer is to deny them the opportunity of
sharing in the spiritual heritage of our Nation." J. Stewart argued that these prayers in
school are appropriate because political branches begin their sessions with a prayer and
when the President of the United States takes their oath they refer to God. Instead of
advocating an "official religion", J. Stewart argued that "[w]hat each has done has been to
recognize and to follow the deeply entrenched and highly cherished spiritual traditions of
our Nation-- traditions which come down to us from those who almost two hundred years
ago avowed their 'firm Reliance on the Protection of divine Providence' when they
proclaimed the freedom and independence of this brave new world."
Discussion. This case illustrates how different justices' view whether certain religious
activity is really the advocating of an "official religion" or something short of that.
448 Lee v. Weisman
Lee v. Weisman
Citation. 505 U.S. 577 (1992).
Brief Fact Summary. Weisman (Respondent) objects to the practice of having clergy
provide prayers at high school graduation.
Synopsis of Rule of Law. Conducting prayers at public high school graduation violates
the Establishment Clause.
Facts. School principals in Providence, Rhode Island are allowed to invite members of
the clergy to provide invocation for middle and high school graduations. Lee (Petitioner),
a school principal, invited a rabbi to deliver the graduation prayer. Prior to his arrival the
principal provided basic guidelines for the content of the prayer.
Issue. Does it violate the Establishment Clause to allow clergy to provide prayers at
graduation?
Held. Yes. A school may not compel a student to participate in a religious activity. A
graduation ceremony requires student attendance. The student may choose to skip the
ceremony, but to do so is to forfeit the social benefit of celebrating this educational
achievement.
Dissent. Prayer at graduation has a long history. Clearly, the United States Constitution
does not mean to eclipse this practice.
Concurrence. Government pressure to participate in religious activity is an obvious
indication that the government is endorsing or promoting religion.
Discussion. The district involvement in the prayer is so strong that it has created a state
sponsored and directed religious activity in a public school. A school official organized
the event, invited the religious speaker, and even provided prayer guidelines. Since the
ceremony is mandatory the state held participants hostage to the activity and forced quiet
respect if not approval of the prayer.
449 Mitchell v. Helms
Mitchell v. Helms
Citation. 120 S.Ct. 2530 (2000).
Brief Fact Summary. A School aid program provides federal funds to support parochial
schools.
Synopsis of Rule of Law. The government may provide aid to parochial schools as long
as the aid does not 1) have the effect of advancing religion; 2) result in governmental
indoctrination; and 3) have impermissible content.
Facts. The Federal school aide program, Chapter 2, distributes money to state and local
agencies to lend educational material and equipment to pubic and private schools. Some
of the materials covered include library services, computer hardware and software. The
program requires the aid to be used for "secular, neutral, and non-ideological" materials.
Currently 41 of the 46 private schools receiving aid are religious schools.
Issue. Does the government violate the Establishment Clause by providing instructional
material to parochial schools?
Held. No. Chapter 2 does not indoctrinate religion or define the recipient by religion. The
program does not advance religion nor does it provide aid with a particular religious
content.
Dissent. There are insufficient safeguards within the program. The aid provided could
have easily been used in the instruction of religion and for religious purposes.
Concurrence. The program has built in safeguards to prevent the support of religious
programs by limiting aid to "secular and neutral" equipment.
Discussion. Indoctrination occurs when such activity could reasonably be attributed to
the government. The key factor for determining this is neutrality of the application of a
program. It must be offered to all schools without regard to religious affiliations, as it was
here.
450 Zelman v. Simmons-Harris
Zelman v. Simmons-Harris
Citation. 536 U.S. 639, 122 S.Ct. 2460, 153 L.Ed. 604 (2002)
Brief Fact Summary. At issue is the constitutionality of a program in the state of Ohio
providing "financial assistance to families in any Ohio school district that is or has been
'under federal court order requiring supervision and operational management of the
district by the state superintendent."
Synopsis of Rule of Law. A program that "provide[s] aid directly to a broad class of
individuals, who, in turn, direct the aid to religious schools or institutions of their
choosing" is entirely neutral with respect to religion and does not violate the
Establishment Clause of the United States Constitution ("Constitution").
Facts. The state of Ohio enacted a Pilot Project Scholarship Program (the "Program") to
provide "financial assistance to families in any Ohio school district that is or has been
'under federal court order requiring supervision and operational management of the
district by the state superintendent.' " The only school district that fit within this category
was the Cleveland City School District. This district was comprised of some of the worst
performing schools in the nation, and comprised mainly of low-income, minority
families. The Program provides tuition aid to qualifying students to "attend a
participating public or private school of their parent's choosing." During the 1999-2000
school year, fifty-six private schools participated in this program. Of those fifty-six
schools, forty-six (or 82%) had a religious affiliation. Over three thousand seven hundred
students participated in the program, and 96% of them enrolled in religiously affiliated
schools. Besides religious schools, this program also includes community and magnet
schools.
Issue. Does a pilot program established by the state of Ohio, to provide families with
children educational choices, violate the Establishment Clause of the United States
Constitution by "advancing or inhibiting religion"?
Held. No. Judge William Rehnquist ("J. Rehnquist") drafted the opinion for the majority.
J. Rehnquist first observed that the Establishment Clause of the First Amendment of the
Constitution applied to the states through the Fourteenth Amendment, precludes states
from passing laws having the "purpose" or "effect" of advancing or inhibiting religion. J.
Rehnquist recognized two lines of Establishment Clause cases. The first, those cases
where a government program provides "aid directly to religious schools", and the second,
where true private choice is involved and "government aid reaches religious schools only
as a result of the genuine and independent choices of private individuals." The majority
then discusses three cases, [Mueller], [Witters] and [Zobrest], that rejected establishment
clause challenges. J. Rehnquist observed how these cases involved "challenges to neutral
government programs that provide aid directly to a broad class of individuals, who, in
turn, direct the aid to religious schools or institutions of their choosing." In these three
cases, the Supreme Court "focus[ed] on neutrality and the principle of private choice, not
on the number of program beneficiaries attending
451 Zelman v. Simmons-Harris
religious schools." J. Rehnquist then concluded the Ohio program "is neutral in all
respects toward religion." The program "confers educational assistance directly to a broad
class of individuals defined without reference to religion, i.e., any parent of a school-age
child who resides in the Cleveland City School District." Additionally, "[t]he program
permits the participation of all schools within the district, religious or non-religious."
Further, religious schools are given no financial incentives to accept students and the
program gives parents the choice to choose secular schools.
Concurrence. Justice Sandra Day O'Connor ("J. O'Connor") filed a concurring opinion
and makes two independent observations.
First, although the Court takes an important step, I do not believe that today's decision,
when considered in light of other longstanding government programs that impact
religious organizations and our prior Establishment Clause jurisprudence, marks a
dramatic break from the past. Second, given the emphasis the Court places on verifying
that parents of voucher students in religious schools have exercised 'true private choice,' I
think it is worth elaborating on the Court's conclusion that this inquiry should consider all
reasonable educational alternatives to religious schools that are available to parents.
J. O'Connor also criticized the Respondents for not focusing on "how the educational
system in Cleveland actually functions", especially in ignoring how parents could send
their children to community schools.
Dissent. Justice David Souter ("J. Souter") filed a dissenting opinion relying on
[Everson] which states "[n]o tax in any amount, large or small, can be levied to support
any religious activities or institutions, whatever they may be called, or whatever form
they may adopt to teach or practice religion." J. Souter goes as far as to accuse the
majority of ignoring [Everson]. Additionally, J. Souter vehemently criticizes the
majority's analysis of the "neutrality" and "free choice" aspects of the Ohio program.
Discussion. It is interesting to note how the majority, concurrence and dissent analyze the
statistical data relied upon in this case, and how their interpretation of the data leads to
drastically different conclusions.

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New York v. United States...........................................................................................63

State of Minnesota v. Clover Lead Creamery Co.......................................................115

Lochner v. New York.................................................................................................171

Citation. 5 U.S. (1 Cranch) 137 (1803).

Brief Fact Summary. William Marbury (Marbury), an end-of-term appointee of

Facts. Before the inauguration of President Jefferson, outgoing President Adams

Issue. Is Marbury entitled to mandamus from the Supreme Court?

Held. No. Case dismissed for want of jurisdiction.

1 • As the President signed Marbury's commission after his confirmation,

3 • To issue mandamus to the Secretary of State really is to sustain an

Citation. 46 F. Supp. 2d 598 (N.D. Texas 1999).

Synopsis of Rule of Law. The Second Amendment of the Constitution confers an

Held. Yes. Indictment overturned.

2 • Historical analysis focuses on the Anglo-American history of individual

3 • Structural analysis argues that the placement of the Second Amendment

5 • Because 18 U.S.C. § 922(g)(8) allowed a state court to deprive a party to

Citation. 74 U.S. 506 (1868).

Held. Yes. Case dismissed for want of jurisdiction.

1 • The appellate jurisdiction of the Supreme Court is not conferred by

2 • Due to the constitutional authorization, the repeal of jurisdiction is valid.

Discussion. Another politically-charged case, Congress repealed jurisdiction out of a fear

Citation. 80 U.S. 128 (1871).

Held. No. Judgment affirmed.

1 • By requiring the courts to make a specific finding of fact in a case over

2 • Congress impaired the presidential pardons by requiring that they be

Citation. 514 U.S. 211 (1995).

Respondent, Spendthrift Farm (Respondent), under § 10 of the Securities Exchange Act

Held. No. Appeals court ruling affirmed.

2 • A judgment "conclusively resolves the case." The statute in question

Citation. 468 U.S. 737 (1984).

Held. No. Reversed and remanded.

1 • Addressing the first allegation, Justice Sandra Day O'Connor (J.

Citation. 428 U.S. 106 (1976).

Issue. Does the Respondent have standing to bring this action?

Discussion. The general guidelines of Abbott Laboratories continue to apply in ripeness

Concurrence. Justice Anthony Kennedy ("J. Kennedy") filed an opinion concurring in

Dissent. Justice Oliver Wendell Holmes (J. Holmes) dissenting.

Concurrence. Justice Clarence Thomas ("J. Thomas") filed a concurring opinion

Discussion. This case provides an interesting discussion of the non-delegation doctrine

[t]he Government's asserted authority to detain an individual that the President

Discussion. J. O'Connor makes a very interesting observation that permeates must of

CHAPTER IV. Limits On

Issue. Is this Illinois statute requiring a special mudguard constitutional?

Issue. May a State, acting as a market participant, impose a requirement on "down-

Saenz v. Roe 526 U.S. 489 (1999).

Dissent. Justice Clarence Thomas (J. Thomas).

Issue. Is the Constitution applicable to privately owned towns?

Discussion. It is established that private action is immune from the Fourteenth

Issue. Does judicial enforcement of a private discriminatory agreement amount to state

Lugar v. Edmondson Oil Co. 457 U.S. 922 (1982).

Edmonson v. Leesville Concrete Co. 500 U.S. 614 (1991).

Brief Fact Summary. The Appellant, Edmonson (Appellant), was injured at a

Discussion. It is interesting to recognize that the dissent argues the "entwinement"

Issue. Does Minnesota's Act violate the Contract Clause?

Lucas v. South Carolina Coastal Council 505 U.S. 1003 (1992).

Issue. Does this specific required right-of-way easement amount to a taking?

Romer v. Evans, 517 U.S. 620 (1996).

Discussion. The mentally retarded do not qualify as a suspect or quasi-suspect class

Washington v. Davis 426 U.S. 229 (1976).

McCleskey v. Kemp 481 U.S. 279 (1987).

Brown v. Board of Education 349 U.S. 294 (1955).