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Keyed to:
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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....................................................................................................................................119
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
CHAPTER I. The Federal Judicial 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.
• As the President signed Marbury's commission after his confirmation, the appointment
has been made, and Marbury has a right to the commission
• 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.
• 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.
• 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.
• 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.
• Structural analysis argues that the placement of the Second Amendment in the Bill of
Rights is indicative of its application to individuals.
• The court finally argues that prudential concerns should not outweigh the importance of
securing the freedoms guaranteed by the Constitution.
• 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)
13 United States v. Emerson

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.
• 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
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.
• 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.
• 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."
• 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.
• 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.
• 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.
• Congress may pass retroactive legislation that affects cases still pending appeal.
However, this amendment requires cases to resume prosecution after judgment has
been rendered.
• 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.
• 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.
• 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.
• 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.
• 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").
• 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

• 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.
• 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.
• 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.
• 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.
• 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.
• 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.
• 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?
• 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?
• 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.
• 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.
• 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?
• 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.
• 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?
• 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."
• 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.
• 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.
• 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.
• 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.
• 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
Issue. Does Petitioner have the right to have the entire Senate receive evidence and testimony?
Held. No, impeachment trials are nonjusticiable.
• 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.
• 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.
• 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
CHAPTER II. The Federal Legislative 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?
• 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.
• 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.
• "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."
• "[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?
• Plaintiff argued that Congressional power under the Commerce Clause is limited to
traffic: buying and selling, interchange of goods, but not to navigation.
• 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.
• 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."
• 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.
• 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.
• 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.
• 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.
• 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.
• It is largely indisputable that, if considered only for its immediate effects, the act in
question is within Congress' power to regulate interstate commerce.
• 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
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?
• 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.
• 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.
• 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…"
• Exercise of Congressional regulation over intrastate activities is an appropriate means to

the legitimate end of regulating interstate commerce.
• "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.
• 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.
• 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.
• 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.
• 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.
• 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.
• 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.
• 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.
• 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."
• 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

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?
• 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.
• 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.
• 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.
• 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?
• 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.
• 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."
• 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."
• 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".
• 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."
• 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".
• 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

• 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?
• 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.
• It is clear that Congress cannot force a State government to enforce a federal regulatory
scheme.
• 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.
• 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?
• The interim provisions violate the federalist structure of the constitution, by requiring
state executive officers to administer federal regulations.
• 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?
• 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).
• 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."
• 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

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?
• 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.
• 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

Katzenbach v. Morgan and Morgan
Citation. 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.
• 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.
• 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

City of Boerne v. Flores
Citation. 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
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?
• 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.
• 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
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.
• 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.
• Section 5 of the Fourteenth Amendment is the only authority Congress has to authorize
a private suit against a state.
Dissent.
• Justice John Paul Stevens believes the Eleventh Amendment only prohibits suits against
a state by citizens of another state.
• 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.
• 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.
• 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
CHAPTER III. The Federal Executive 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.
• United Steelworkers and steel mill owners failed to come to a labor agreement over a
period of several days.
• 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.
• 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.
• Justice Douglas: The existence of an emergency does not create powers for the
President.
• 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.
• 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.
• 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."
• 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.
• 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.
• 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.
• 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 States Constitution
(Constitution).
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.
90 Hamdi v. Rumsfeld
Hamdi v. Rumsfeld
Citation. __U.S.__, 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.
• 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?
• What is the appropriate means for an individual designated an enemy combatant to

challenge his classification as such?
Held.
• 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
citizen as an enemy combatant. Additionally, J. O'Connor distinguished [Milligan], by
pointing to the fact Milligan was not a prisoner of war.
• 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.
• 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."
• 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
the unity, secrecy, and dispatch that the Founders believed to be so important to the
warmaking function.
• 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."
• 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.' "

• 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."
• 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."
• 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 States Constitution (Constitution).
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
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 States Constitution (Constitution).
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.

State of Minnesota v. Clover Lead Creamery Co.
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

Dean Milk Co. v. City of Madison, Wisconsin
Citation. 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 Constitution (Constitution).
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 interstate commerce.
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
Citation. 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.
• 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.
• 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.
• 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 United States Constitution
(Constitution).
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:
• The law was equally applicable to in-state and out-of-state offerors
• It did not create inconsistent regulation by multiple states and
121 CTS Corp. v. Dynamics Corp. of America

• 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

Reeves, Inc v. William Stake
Citation. 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 interstate commerce.
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.
• 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.
• 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 Constitution (Constitution).
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.
• 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.
• 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.
• 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
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
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
Citation. 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
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.
134 Slaughter-House Cases (Butchers' Benevolent Association of New Orleans v. Crescent City Livestock Landing and
Slaughter-House Company)
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.
Synopsis of 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.
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.
• The rights claimed by the Plaintiffs are not privileges and immunities of citizens of the
United States within the meaning of the Fourteenth Amendment of the Constitution.
• 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
Citation. 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).
• 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).
• 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 United States Constitution (Constitution).
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.
• 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.
• The Fourteenth Amendment of the Constitution gave Congress the power to enforce the
Amendment through appropriate legislation.
• 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.
• 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.
• State authorization and approval is enough to make it a State Action
• There is extensive interaction between the State and the Respondent.
• 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

• The Respondent has a monopoly, but that does not mean it is a State action
• The Respondent performed an essential public function (service of electricity), but that
does not make it a State action.
• 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 United States Constitution
(Constitution).
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.
• 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.
• 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."
• 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
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.
• 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.
• On August 11, 1945, the Appellant, unaware of the covenant, purchased a parcel of this
land from Fitzgerald.
• 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.
Citation. 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.
• 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.
• 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.
• 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.
• 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?
• Has the attachment of the prejudgment lien resulted from the exercise of a right or
privilege having its source in state authority?
• 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.

• Yes. Since the ex parte procedure is one dictated by state statute then the first prong is
satisfied.
• 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.
Citation. 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.
• 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.
• 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.
• The construction and maintenance of the building were derived completely from
governmental funds and the Appellee was responsible as the facility landlord.
• 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."
• 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.
• Appellant is a private club that is located in its own building. Only club members or
guests are permitted on the premises.
• 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."
• The Liquor Control Board plays no part in establishing or enforcing the club's
membership or guest policies.
• 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
• 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

• 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.
• 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.
• 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.
• 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.
• 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.
• 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.
• 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.
• 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.
• 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
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.
• Federal regulations require each nursing facility to establish a utilization review

committee (URC) of physicians who periodically review patient cases for appropriate
patient placement.
• 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.
• 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

• Being subject to state regulation does not convert a private action into state action,
• A state is responsible for a private decision only when it has exercised coercive power
or has provided significant encouragement of the decision, or
• 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.
• 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.
• The intent of Proposition 14 was to nullify previous laws that protected the rights of
racial minorities to own and possess property.
• 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.
• 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

• 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."

• 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.' "
• 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' ".
• 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."
• 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."
• 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."
167
CHAPTER VI. Economic Liberties
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 Constitution (Constitution).
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.
• 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.
• 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.
• 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 Amendment of
the Constitution?
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.
• The right to purchase or sell labor is part of the liberty protected by the 14th
• Baker's are persons capable of entering into and making contracts for the sale of their
labor and skills.
• 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.
• 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.
• 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 of the United States
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.
• Shoddy is comprised of clippings and leftover material from cutting tables. Sometimes
the shoddy will be made of secondhand garments and soiled rags.
• 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.
• 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.
• 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.
• 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.
• 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.
• 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.
• 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.
• 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

• 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.
• 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.
• 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.
• 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.
• 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.
• 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

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."
• Justice Clarence Thomas ("J. Thomas") also filed a dissenting opinion arguing "the
Constitution does not constrain the size of punitive damage awards."
• 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.
• 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.
• 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.
• 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.
• 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."
• 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
Citation. 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.
• 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?
• Does an "essential nexus" exist between the "legitimate state interest" and the permit?
• If so, then what is the required degree of connection between the easement and the
projected impact of the proposed development?
Held. No.
• 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.
• 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.' "
• 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."
• 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."
• 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.
• 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.' " "
• 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.
• 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".
• 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.
206
CHAPTER VII. Equal Protection
Romer v. Evans
Citation. 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.
• 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 Constitution (Constitution)?
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.
207 Romer v. Evans

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.
• 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
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?
• 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.
• 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.
• 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.
• 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
Citation. 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 Constitution
(Constitution)?
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.
• 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 citizen. Therefore, it is in the nation's best interest to desegregate the races and
educate equally.
219 Washington v. Davis

Washington v. Davis
Citation. 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.
• 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
Citation. 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.
• 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.
• 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 Constitution
(Constitution).
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.
• 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
Citation. 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.
• 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.
• 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
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.
• What is the scope of District Court authority under Brown II?
• 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.
• Remedial authority does not put judges "automatically in the shoes of school
authorities."
• 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.
• 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
resent de jure segregation.
• The courts may redefine district lines to desegregate the systems, even though such
redistricting may cause initial inconvenience and burdens.
• 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
school systems. However, their authority only exists when the local school boards
"default" in their efforts to desegregate.
227 Swann v. Charlotte-Mecklenburg Board of Education

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.
• 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.
• 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 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.
• 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.
• 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 States Constitution (Constitution).
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.
• 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.
• 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.
• 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.

hand knowledge of discrimination found by the Appellant and represents an attack on
affirmative action programs in general.
• 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.
• 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.
• 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
Citation. 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.
• Whether the use of race by the Law School as a factor in student admissions is lawful?
• Whether the Law School's policy is narrowly drawn to further a compelling state interest?
Held.
• 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

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.
• 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.
• 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.
• 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

government discrimination on the basis of race, and state-provided education is no
exception."
• 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.
• Whether the use of race by the University's LSA College as a factor in student admissions is
lawful?
• Whether the portion of the University's LSA Colleges' admissions policy concerning race, is
narrowly drawn to further a compelling state interest?
Held.
• Yes. See [Bakke] and [Grutter v. Bollinger].
• 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

• 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."
• 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.
• 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.
• 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 12 th 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".
• 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

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 Amendment of the United States Constitution (Constitution).
Issue. Does the statute offering different spousal benefits for servicemen on the basis of gender
violate the Fifth Amendment's guarantee of equal protection?
• 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.
• 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 Constitution (Constitution).
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 Amendment
of the Constitution?
Held. Yes. Appeals Court ruling reversed and remanded.
• 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.
• 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 of the United States Constitution (Constitution).
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.
• Does the current system of excluding women solely on the basis of race from VMI
violate equal protection?
• 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.
• Justice Ruth Bader Ginsburg (J. Ginsburg) notes that heightened (that is, intermediate)
scrutiny is the appropriate level of review for gender-based discrimination.
• 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.
• 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
Held. No. Appeals Court ruling affirmed.
• 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.
• 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.
• 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.
• 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.
• 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.
• 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
Issue. Does the California statutory rape statute violate principles of Equal Protection?
• 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.
• 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.
• 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.
• 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.
• 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 States Constitution
(Constitution).
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.
• 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.
• 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 5 th 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."
• 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.' "
• 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."
• 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

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.
• 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 Amendment of the United States Constitution
(Constitution).
Issue. May Arizona distinguish between resident aliens and citizens under the Fourteenth
Amendment of the Constitution?
Held. No. Court of Appeals ruling affirmed.
• 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.
• 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.
• 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.
• 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.
• 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.
• 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).
• 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 Constitution (Constitution).
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?
• 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."
• 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.
• 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.
• 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 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
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
• 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.
• 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.
• 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.
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.
• 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 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.
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.
• 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.
• 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.
• 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.
• 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.
• Justice John Paul Stevens (J. Stevens) believes the case should have been denied certiorari, as the
Washington Supreme Court struck down the statute itself.
• Justice Antonin Scalia (J. Scalia) argues that the Court should not be deciding questions of family
law, but rather the legislature.
• 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.
• 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.
• 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.
• 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.
• 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
Citation. 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.
• 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.
• 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.
• 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.'"
• 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.
• 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.
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?
• 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.
• 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.
• Prior to the end of the first trimester, only the pregnant woman and her physician may make decisions
regarding the termination of a pregnancy.
• During the second trimester, the state may regulate abortion in manners reasonably related to
maternal health.
• 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.
• 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."
• 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."
• "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."
• 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.
• A State may not prohibit any woman from making the ultimate decision to terminate her pregnancy
before viability.
Dissent.
• Chief Justice William Rehnquist (J. Rehnquist) states that he believes Roe was improperly decided
and tradition requires the Supreme Court to overturn the holding.
• 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?
• 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.
• 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.
• Justice Antonin Scalia (J. Scalia) reiterates his belief that the Supreme Court of the United States'
(Supreme Court) abortion jurisprudence is judicial legislation.
• Justice Anthony Kennedy (J. Kennedy) suggests that the courts are ill-prepared to distinguish
between various techniques for abortions.
• 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.
• 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.
• 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?
• 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.
• 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.
281 Planned Parenthood v. Casey

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?
• 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.
• 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.
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?
• 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.
• 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?
• 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.
• 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.
• 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.
• 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, 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 United States Constitution
(Constitution).
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.
• 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.
• 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.
• 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.
• 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.
• 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."
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.
• Is a statute that makes it illegal for two persons of the same sex to engage in certain intimate contact
valid?
• 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.
• 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."
• 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 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.
• 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.
• 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.
• 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. 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."
• 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.
• 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.
• 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.
• 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.
• 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 Amendment of the Constitution.
Issue. Does a State poll tax violate the Equal Protection Clause of the Fourteenth Amendment of the Constitution?
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.
• 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.
• 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 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."
• 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."
• 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."
• 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 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)?
• 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.
• 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.
• 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.
• 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 Constitution (Constitution)?
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?
• If education is a fundamental right, classifications affecting access to education are subject to strict
scrutiny.
• 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.
• 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.
• Thus, the Court applied the rational basis test to require the Texas law to be rationally related to a
legitimate government interest.
Dissent.
• 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.
• 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.
• 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.
• 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 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."
• 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."

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."
• 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.
• 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."
• 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.
• 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."
• 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.
• "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."
• 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."
• 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

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.
• 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.
• 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.
• Justice Hugo Black (J. Black): The press must be free to publish the news without
censorship, injunctions or prior restraints.
• 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.
• 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

• 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.
• 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.
• 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 Constitution (Constitution).
• 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."
• 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
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.
• 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.
• 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."
• 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."
• 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.' "
• 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.

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.
• 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.
• 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
Held. Yes. Affirm Court of Appeals
• The badge requirement discourages participation in the petition circulation process by

forcing name identification without just cause.
• 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?
• 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.
• 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.
• 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."
• 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].
• 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

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.
• 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."
• 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.
• 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.
• Justice Hugo Black (J. Black): The clear and present danger test does no more than set a
minimum compulsion of the Bill of Rights.
• 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.
• Justice Warren Burger (J. Burger): A statute should be held unconstitutional on its face
not because of its previous application.
• 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.
• Justice Byron White (J. White): The ordinance is unconstitutional because it is

overbroad.
• 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.
• May a state ban cross burning if it is accompanied by "an intent to intimidate a person or
group of persons"?
• 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.
• 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

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.' "
• 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.
• 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.
• 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.
• 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

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.
• 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 Constitution
(Constitution)?
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.
• 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.
• 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.
• Distribution of these materials is intrinsically related to child abuse.
• Advertising and selling these types of materials provide an economic motive to engage
in illegal activity.
• 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.

• 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.
• 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.
• Justice David Souter (J. Souter): There is insufficient evidence to support the city's
claim of secondary effects.
• 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 United States
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."
• 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."
• 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.
• 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 Amendment of the United States Constitution (Constitution).
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.
• Justice Thomas found the balancing of state and individual interests to be inappropriate
in this situation because the cited state interest is illegitimate.
• 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."
• 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.' "

• 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."
• 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."
• 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.
• Justice Brennan: The proper test for determining defamation against individuals is the
same as articulated in New York Times.
• 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.
• 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

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.
• 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."
• 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."
• 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

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."
• 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.
• Justice Rehnquist: The statute is Constitutional because it limits only one means of
communication. This means is rather inarticulate and not worth protecting.
• 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.
• Justice Kennedy: This decision has forced the development of covert speech and
elaborate schemes to avoid the detection of contributions.
• 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.
• 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.
• 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.
• 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.
• 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
CHAPTER X. First Amendment: Religion
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.
• 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.
• 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

• 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.
• Justice Brennan: A display that maintains its religious meaning violates the United
States Constitution's requirement of the separation of church and state.
• 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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Citation. 5 U.S. (1 Cranch) 137 (1803).

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

Held. No. Case dismissed for want of jurisdiction.

• To issue mandamus to the Secretary of State really is to sustain an original action,

12 United States v. Emerson

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

Held. Yes. Indictment overturned.

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

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

13 United States v. Emerson

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

Held. Yes. Case dismissed for want of jurisdiction.

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

17 United States v. Klein

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

Held. No. Judgment affirmed.

• Congress impaired the presidential pardons by requiring that they be inadmissible as

18 Plaut v. Spendthrift Farm, Inc.

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

Held. No. Appeals court ruling affirmed.

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

Held. No. Reversed and remanded.

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

Held. Yes. Court of appeals ruling affirmed.

21 Elk Grove Unified School Dist. v. Newdow

Citation. 124 S.Ct. 2301 (2004)

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

22 Elk Grove Unified School Dist. v. Newdow

23 United States v. Richardson

Citation. 418 U.S. 166 (1974).

Synopsis of Rule of Law. Standing is denied to "generalized grievances."

Held. No. Appeals court ruling reversed and remanded.

Citation. 392 U.S. 83 (1968).

Held. Yes. Reversed and remanded.

Citation. 454 U.S. 464 (1982).

Citation. 367 U.S. 497 (1961).

Issue. Is the petitioners' claim ripe for judicial review?

27 Abbott Laboratories v. Gardner

Citation. 387 U.S. 136 (1967).

Issue. Have appellants brought an action ripe for judicial review?

Held. Yes. Reversed and remanded.

28 Friends of the Earth, Incorporated v. Laidlaw Environmental Services

Citation. 120 S. Ct. 693 (2000).

Brief Fact Summary. Defendant - respondent, Laidlaw Environmental Services (Defendant),

Issue. Can Defendant's voluntary conduct sustain a finding of mootness?

Held. Not in this case. Reversed and remanded.

• A case compelling compliance requires the Plaintiff to establish the complained of

29 United States Parole Commission v. Geraghty

Citation. 445 U.S. 388 (1980).

Citation. 369 U.S. 186 (1962).

Synopsis of Rule of Law. An apportionment case may be reviewed on Fourteenth Amendment

Issue. Is it possible to bring a malapportionment claim without raising a nonjusticiable political

Held. Yes. Reversed and remanded.

Citation. 541 U.S. 267 (2004)

• If not, what is the appropriate standard?

• There is no "constitutionally discernable standard." J. Scalia first criticizes Justice Powell's

Citation. 395 U.S. 486 (1969).

Synopsis of Rule of Law. The "textual commitment" to a constitutional provision by a political

Held. Yes. Case reversed and remanded.

• The Defendants-Respondents, members of Congress including the Speaker of the House

Citation. 444 U.S. 996 (1979).