Constitutional Law II

Prof. Marci Hamilton

Fall 2002
 No absolute rights except the right to belief.
 Circumstances, facts, context drive calculus of rights.

I. Equal Protection
A. Race and the Constitution
Non-abolition of slavery in north - State v. Post (1845) p.423
 Can slavery exist in New Jersey, whose constitution says “all men shall enjoy . . . ?
 Court: Yes, following historical deduction.
o if NJ constitution intended to abolish slaver, it would have explicitly done so.
o The U.S. Constitution implicitly recognizes slavery.

Blacks not citizens - Dred Scott v. Sandford (1857) p.427

 Does a slave become free when entering a state that has abolished slavery? NO
 No, blacks are not citizens, thus court had no jurisdiction to hear his case.
o Court has no power to confer citizenship on blacks, slavery implicitly accepted by const.
o Court has no power to effect social change.
 Epilogue: It would take a Civil War and 3 Constitutional Amendments to end slavery and grant citizenship on blacks.

13th Amendment: No involuntary servitude except as criminal punishment. Cong may enforce by appropriate legislation

14th Amendment: All persons born or naturalized in U.S. are citizens. No state shall make a law that shall abridge the
privileges or immunities of citizens, nor shall any State deprive any person of life, liberty, or property, w/o due process of
law, nor deny any person equal protection of the laws.
 Post-14th amendment, minorities are w/in “universe of equality” b/c of inclusion of word “citizens”, so
court can go on to use strict scrutiny.

Separate but equal does not violate E.P.C. - Plessy v. Ferguson (1896) p.437
 Do “separate but equal” railroad cars for blacks and whites violate E.P.C.? NO.
 P argues: separation pits one race against the other, drawing an implication of inferiority about blacks.
 Court: Separate but equal does not violate E.P.C.
o As long as cars are physically equal, “both get where they want to go,” no constitutional violation.
o Evidence that separate but equal is constitutional: cong. created segregated schools in D.C.
th
 Harlan’s Dissent: Constitution should be “color-blind” based on “citizenship” of 14 amend.
o Equality must speak to psychological, as well as physical treatment. (≈ Plessy’s argument)  adopted in Brown.
 Baseline of Equality: Functional, Physical equality.

Separate but equal is inherently unequal - Brown I (1954) p.446

 Prologue: In Sweat v. Painter, and McLaurin v. Okla., the Court required the admission of a black student to a white
school because of physical inequalities and intangible inequalities between black and white schools.
 Are segregated yet tangibly and physically equal schools constitutional? NO - “Separate educational facilities are
inherently unequal”
 Stigmatizing, intangible detrimental effects of segregated schools deprives equal opportunities.
o Based on sociological evidence (scantly used since Brown)
 Positive effects of integration.
o Due to changing society changes Court’s conception of equality:
 Increased importance of public education since adoption of 14th amendment.
 Integrated society makes separation less equal.
 Baseline of Equality: Psychological, Stigmatizing equality.
 Epilogue:
o Pike Case applied Brown’s reasoning to swimming pools (public activity is a value ≈ education) and was quickly
applied to all public arenas.
o Post-14th amendment, minorities are w/in “universe of equality” b/c of word “citizens”, so court can use
strict scrutiny.

Desegregate with “all deliberate speed’ - Brown II (1954) p.453

 What relief to grant in light of Brown I? All Deliberate Speed.
 Schools must desegregate with “all deliberate speed.”
 Implicitly, the holding of Brown I was not merely to repeal laws of segregation, but to effect integration.
 Remedy: District Courts require local school boards to make a “prompt and reasonable start toward full
compliance” with Brown I.
o Perhaps court feared that executives would not follow their decree if forced to act immediately.
o Court began demanding immediate desegregation in 1960s when a political consensus against segregation emerged
(C.R.A. of 1964).
 Epilogue:
o Brown II was followed by a period of “massive resistance” during which there was little desegregation.
o De facto segregation - not unconstitutional,
o De jure segregation (imposed by government action) - unconstitutional.
o Post-14th Amendment, blacks are within the universe of equality b/c of status as “citizens”.
 It took the civil war to get the 14th amendment and a social fight to get desegregation.
 Later we begin to ask what level of scrutiny to apply to ensure this equality.
o Post-Brown II - purposeful discrimination in public is unconstitutional, not just segregation.

End of southern resistance - Swann v. Charlotte-Mecklenburg Board of Education (1971) p.460/6

 Is de facto segregation, despite government initiatives to integrate, in a school district that had formerly been
segregated by law unconstitutional? YES
 Court unanimously upheld an order requiring gerrymandering of school districts and busing of students
between inner city and outlying schools.
 BUT: court recognized that at some point, “in the absence of a showing [of deliberate State sponsored segregation],
further intervention by a district court should not be necessary.
 Epilogue:
o This marked the end to southern resistance
o Court’s attention shifted to allegations of de jure segregation in northern cities.

Mandated desegregation in northern cities - Keyes v. School District No. 1 Denver Colo. (1973) p.461 –
 Is educational segregation in a northern city that had “gerrymandered segregation” unconstitutional? NO.
 Intentional, deliberate, or purposeful state action to bring about, or maintain racial segregation is
unconstitutional discrimination.
 Evidence of discrimination in a portion of the district creates a resumption of discrimination in entire district.
o ITC, there was a finding of deliberate gerrymandering in one section, thus system-wide relief is appropriate.
 Powell Concurrence: substantial de facto segregation places burden on public officials to show that they are operating
a genuinely integrated school system.
 Ask (post-Keyes): is there deliberate, intentional governmental action (ex: intentional gerrymandering, unequal
funding) to segregate or maintain segregation, even if law never mandated segregation?
 Epilogue: Retreat from mandated desegregation in northern cities
o In 1990’s, if there is still de facto segregation and no evidence of continuing government hostility, there is now a
presumption against unconstitutional behavior, and court ordered desegregation plans will be lifted.

© Tal Dickstein, 2002 2

 o Milliken v. Bradley: no inter-district remedies w/o evidence of inter-district violation and inter-district effect. ( ≠
Keyes)

(1) Levels of Scrutiny

GOVERNMENT TAILORING
GROUP TARGETED LEVEL OF SCRUTINY INTEREST required to REQUIREMENT to
uphold discriminatory law uphold discriminatory law
“Strict, Rigid Scrutiny” “Narrow Tailoring” /
Race, Religion “Compelling”
“Strict in theory, fatal in fact” “Least restrictive means”
“Significant” / “Strong Fit”/ Substantial /
Gender “Intermediate scrutiny”
“Important” Close relationship
Other (i.e., economic “Low-level / Rational-
“Rational” / “Reasonable” No tailoring requirement
regulations, police power) Review”

Why these levels of scrutiny?

 Race/Religion – strict, searching, rigid scrutiny
o 14th intends to protect based on race
o Members of different races, religions are usually similarly situated, thus it is rarely if ever relevant to any
legitimate governmental purpose.
o Moral norms about protecting racial classification.
o Stigma of governmental racial discrimination.
o Defects in political process make it likely that classifications aimed at racial minorities are invidious
discrimination. (See U.S. v. Caroline Products fn 4 p.507)
“The purpose of strict scrutiny is to ‘smoke out’ illegitimate uses of race by assuring that legislature is pursuing a goal
important enough to warrant use of a highly suspect tool. The test also ensures that the means chosen ‘fit’ this
compelling goal such that there is little or no possibility that the motive for the classification was illegitimate racial
prejudice or stereotype.”
 Gender
o Usually are similarly situated (but not always), so discrimination based on gender is usually irrelevant to
any legitimate governmental purpose
 Other
o Often are not similarly situated, so discrimination is not likely to be a violation of E.P.C.
o Courts work w/in the adversarial process (only hear facts brought by litigants), they are not good at
investigation required for policy-making, as long as government has a rational public purpose – it will be
a valid exercise of the State police power.
Determining Government’s Purpose
 Government need not illustrate its purpose at time of enactment, but may do so at time of litigation.
 Court looks to government’s purpose, not its motivation for passing the law (ex: lobbying)
o Court first looks to language of statute, then to legislative history to determine purpose.
Alternative: flat-rule test (advocated by Scalia)

(2) Analyzing claims of E.P.C. violation

If not similarly situated
w/re to what the law If similarly situated, does
What is the
Are groups in that regulates, gov’t may government’s PURPOSE for
UNIVERSE
 universe SIMILARLY  treat them differently differential treatment and
OF
SITUATED? If yes similarly situated, TAILORING meet court’s
EQUALITY?
ask: what level of LEVEL OF SCRUTINY?

scrutiny

© Tal Dickstein, 2002 3

 A. Rational Basis Review – Low Level Scrutiny
Low-level scrutiny for methadone users - NYC TA v. Beazer p.475
 MTA’s refusal to employ methadone users (helps to cure heroine addiction). CONSTITUTIONAL
Universe of equality? Similarly situated? Rational Relation?
 Universe of equality is  Yes, similarly situated  This could be more
successful methadone users b/c they are just as narrowly tailored by
P argues:
compared to general employable as general refusing only heroine
population population. users.
 Universe of equality is all  Not, similarly situated  Yes b/c some
Government
methadone users compared b/c some methadone methadone users are
argues:
to the general population users are unemployable. unemployable.
 Low-Level Review: b/c methadone users are not a “suspect class”
o THUS, government only needs a “rational reason” to treat them differently and “loose tailoring” between
objective and means is tolerated.
 Result: employable workforce is a legitimate governmental goal w/ rational relationship to methadone use.

Economic regulation by police power gets low-level scrutiny - Railway Express Agency v. New York p.484/9
 NYC’s ban on advertisements on self-owned vehicles? CONSTITUTIONAL
 Government’s purpose: decrease accidents by decreasing driver distraction.
 Low-level scrutiny b/c self-owned businesses are not a suspect class.
 In every government initiative there is some degree of discrimination.

Non-invidious economic discrimination gets low-level scrutiny - Williamson v. Lee Optical p.485/9
 Law treating optometrists and ophthalmologists differently. CONSTITUTIONAL.
 Government may treat similarly situated groups differently in effecting a rational goal (as long as no “invidious
discrimination” (City of Cleburne)).
o E.P.C. does not guarantee of fairness in every situation.
o Court shouldn’t get involved in deciding best way to implement a governmental policy.
o The political process should correct for these baseless distinctions, but court not involved.
 Court gives legislature broad discretion in economic regulation by use of police power.

State must only show theoretically rational relation to legitimate purpose – Minn. v. Clover Leaf Creamery p.485
 State law banning sale of milk in plastic but not paper containers. CONSTITUTIONAL.
 “Legitimate” state purpose is environmental protection – doesn’t have to be narrowly tailored.
 When court applies rationality review (econ. discrimination), state need not show an empirically reasonable
relation to legitimate purpose, only a theoretically reasonable relation.
o B/c of “institutional incompetence”
o “States are not required to convince the courts of the correctness of their legislative judgments.”

Finding of “invidious discrimination” raises level of scrutiny - City of Cleburne v. Cleburne Living Cntr. p.488/9
 City’s ban on mentally retarded facility where it would allow other group homes. UNCONSTITUTIONAL
Universe of equality Similarly situated Level of scrutiny
Group homes Yes b/c they aren’t a unique danger Low-level b/c not a suspect class – allow
to the local community gov’t latitude to make distinctions in
effecting policy (Williamson)
 Where court finds that government’s purpose is “irrational prejudice”  unconstitutional “Invidious
Discrimination”
o No basis for Court’s conclusion of invidious discriminating, it looks to “spirit of the times”, “judicial
notice of public will”– no longer using sociological studies.
o Court seems to impute society’s discriminatory intent to the government. “permit was required b/c of
irrational fears of neighboring property owners”
 In general, it will not do so.

© Tal Dickstein, 2002 4

 Hamilton: Court speaks in terms of low-level scrutiny, but this seems more like intermediate scrutiny b/c gov’t’s
justification here is not truly irrational.
o Where court concludes “invidious discrimination”, it will bump scrutiny up to intermediate level.

B. Strict Scrutiny and Race

(1) Race-specific-classifications that expressly disadvantage minorities
Explicitly excluding blacks from juries fails strict scrutiny - Strauder v. West Virginia (1880) p.499
 State law limited jury service to white males. UNCONSTITUTIONAL.
 D argues: excluding blacks is a way to weed out bad jurors b/c of lack of education.
 Analysis under today’s strict scrutiny for race
o Gov’t general goal of educated jury pool is legitimate. (Washington v. Davis)
o But, this is bad tailoring b/c there are many uneducated whites too.
o Thus, discrimination based on education is a pretext for racial discrimination.
th
 Expressly singling out blacks clearly violates 14 amendment, which includes blacks as “citizens” and was
designed to assure blacks all protections and civil rights under the law (ex: voting).
o Court talks about social evils of de jure discrimination.
 ITC: jurors may be prejudiced against D based on their race, so D is being discriminated against  conviction
overturned.

Racial discrimination may be upheld by pressing public necessity - Korematsu v. US (1944) p.501/13
 Executive order authorized military to issue exclusion order requiring people of Japanese decent to be detained.
CONSTITUTIONAL
 Laws that curtail civil rights of single racial group are “immediately suspect”, and subject to “rigid scrutiny”,
but may still be constitutional in light of “pressing public necessity”, “gravest imminent danger to public safety”.
(National security).
 Dissent: insufficient tailoring, not even a reasonable relation to dangers of sabotage.
o Military could have achieved national security by investigating saboteurs.
 Significance:
o Courts often defer to military (ex: porn in military) b/c of institutional incompetence, esp. during war.
o We have “accordion” set of rights according to the circumstances.
o It is possible for government to pass rigid scrutiny.

(2) Non-race-specific classifications that are facially neutral (but have disparate impact)
Disparate racial impact w/o purposeful discrimination gets low-level review - Washington v. Davis (1976) p.514
 Higher percentage of racial minorities failed a linguistic test used to qualify police officers. UPHELD.
 Low-level rationality review b/c law is facially neutral.
o Claimant may then prove that facially neutral statute is a pretext for racial discrimination.
 Racially disproportionate impact alone w/o regard to whether there is discriminatory purpose does not trigger
strict scrutiny
o ≈ to school desegregation cases where discriminatory purpose must be shown.
 ITC: state has legitimate goal of competent police force, and a literary test is rationally related to that goal.
 Hypo: If there is discretion involved in administering the law.
o Heightened scrutiny if claimant can show discriminatory purpose, intent.

Statistically disparate impact doesn’t infer purposeful discrimination - low-level scrutiny - McClesky v. Kemp p.523
 “Baldus study” showed that Blacks were sentenced to death at much higher rates than whites. UPHELD.
 Defendant who alleges E.P.C. violation must show, or infer, purposeful discrimination in his case.
 P claims: statistical evidence proves that facially neutral law is pretext for purposeful discrimination.
 Court: no inference of purposeful discrimination by gov’t b/c jury system is an intervening cause between the law and
disparate impact – court will not impute discrimination of private individuals to government.

© Tal Dickstein, 2002 5

 o BTW: If there was evidence of prosecutorial discrimination that would prove purposeful discrimination.
 Low-level rationality review: b/c law is facially neutral and no showing of purposeful discrimination.
o Jury system is legitimate governmental purpose.
 Epilogue: Court not as trusting of statistical evidence since Brown.

Ways to get strict scrutiny:

 race-specific classification
 facially neutral law that is pretext to purposeful discrimination.

(3) Race-specific classifications that are facially neutral (i.e., don’t target a particular race)
Race-specific classifications that are facially neutral are subject to strict scrutiny - Loving v. Virginia (1967) p.533
 Facially neutral law prevents marriages between people of different races. UNCONSTITUTIONAL
 Gov’t argues: law treats both blacks and whites the same. Goal of maintaining “racial integrity”.
 What level of scrutiny:
o All race-specific classifications (even if facially neutral) are subject to strict scrutiny
 Applying strict scrutiny:
o There is no legitimate governmental purpose – only “invidious discrimination.”
 Evidence: B/c statute only prohibits intermarriage involving white people, thus designed to
maintain white supremacy
 Significance: in the wake of Brown, racial equality has become a moral norm.

Majority may not stand in way of minority efforts to achieve equality - Washington v. Seattle Sch. District p.535/16
 Wash. State law prohibiting school bussing for purposes of racial integration was challenged by Seattle School
District, which voluntarily initiated a school-bussing program, as violation of E.P.C. UNCONSTITUTIONAL
 Race-specific-classification b/c political process used to address racially conscious legislation is being singled
out and disadvantaged.
o Evidence: only racial bussing was transferred away from local control.
 Strict scrutiny when law imposes substantial and unique burdens on racial minorities to enact legislation on
their behalf.
th
 But: can’t use 14 amendment as a shield to protect bussing plans. – [The problem is that ITC, bussing program itself
is being targeted.]

(4) Race-specific classifications that benefit racial minorities

Race based distinction may not be used to burden a race - Regents of U.C. v. Bakke p.553/17
th
 14 is race-neutral, it aims for a zero-sum game.
th
 14 says “shall not deny equal protections” – only addresses burdens.
 Until Croson, unclear what level of scrutiny court is using in this case.
o On the one hand, race could be used as a plus to remedy prior discrimination.
o But, could not use racial quotas, which necessarily burden another race.

Strict scrutiny applies to all State race-specific classifications - City of Richmond v. J.A. Croson Co. p.557/17
 Law set aside 30% of gov’t subcontracts for minorities. UNCONSTITUTIONAL
 Strict scrutiny applies to all race-specific classifications, whether they benefit or burden minorities b/c label of
“remedy” may be a pretext for invidious discrimination.
o To pass strict scrutiny for affirmative action program, must show that government had become a
passive participant in ongoing discrimination of a specific group and narrow tailoring to end such
discrimination.
 ITC: initiative was not narrowly tailored (30% is arbitrary) b/c no showing that some of the minorities who are given
preferences under the plan are discriminated against, or what percentage of subKors in total are minority.
 Distinguish: if city had evidence or inference of racial discrimination (i.e., it knew what percentage of subKors were
minority and that they were receiving fewer Ks that non-minorities) remedial action might be upheld.
o Also: city could vicariously benefit minorities by providing incentives based on small business, ect.
© Tal Dickstein, 2002 6
Strict scrutiny applies to Federal race-specific classifications as well - Adarand Constructors v. Pena p.574/18
 Fed. gov’t gave general Kors a financial incentive to hire “socially and economically disadvantaged individuals”
(i.e., racial minorities). STRICT SCRUTINY (remanded to determine constitutionality)
th
 14 amendment doesn’t apply to federal government; it says, “States may not…”
o B/c at the time of 14th fed. gov’t were the “good guys”.
th
 Reverse Incorporation: 5 amendment (which applies to federal government) D.P.C. guarantee of libierty
carries with it an E.P.C. “component”.
 Thus, all racial classifications, imposed by whatever government actor, are subject to strict scrutiny.
o Such classifications are constitutional only if they are narrowly tailored to further a compelling
governmental interest.
 B/c classifications on race (no matter by what gov’t body) so seldom provided a relevant basis for disparate treatment.
 Scalia concurrence: gov’t may never discriminate based on race (“In the eyes of government we are just one race
here. It is American”)

B. Intermediate Scrutiny and Gender

(1) The Road to Intermediate Scrutiny
Gender discrimination failed rational relation test -Reed v. Reed (1971) p.598/19
 Inheritance law gave preference to males over females. UNCONSTITUTIONAL
 Court still uses low-level rational relation, but finds nothing but “invidious discrimination” (≈ City of Cleburne)

Court can’t agree on standards of scrutiny for gender - Frontiero v. Richardson (1973) p.598/19
 Fed. law automatically allowed males to claim their spouses as a dependant, but females had to prove that their
spouses dependence upon. UNCONSTITUTIONAL
Brennan plurality (4 judges) Stewart (C. in judgment) Powell plurality (3 judges)
Inherently suspect, strict scrutiny - Unnecessary to upset Reed
ITC, fails strict scrutiny Invidious discrimination Fails rationality review b/c it is wholly arbitrary

Heightened / Intermediate review for gender discrimination - Craig v. Boren p.602/20

 Law prohibited 18-year-old men and 20-year-old women from buying 3.2% alc. beer. UNCONSTITUTIONAL
 Gender discrimination requires a close / substantial relationship between means and an important
governmental objective.
 Gov’t argues: b/c males are statistically more likely to be drunk drivers.
 Court: statistics show a very little distinction, also the law prohibits sale, not consumption (which is the real problem).
 Distinguish: state could restrict consumption of alcohol or show that sale is linked to drunk driving.
 Renquist dissent: worried that Justices will use their own conceptions in applying 3-tiered system of scrutiny.

Hypo: could school use affirmative action for women

 If state could come up with an important purpose i.e., contribution to a field. (equal representation alone is not
enough) and substantial relationship.

Why intermediate scrutiny for gender?

 B/c history of discrimination against women.
 But, men and women are not similarly situated in a few respects (childbirth). Unlike racial classifications.

How does court fit gender into the 14th amendment?

th
 B/c 14 says “all persons born or naturalized in U.S. . . “
th
 14 used broad/ambiguous language to incorporate future conceptions.
 Alternately, American people informally amend the constitution by social progress then S.C. ratifies it.

© Tal Dickstein, 2002 7

 C. Other Candidates for Heightened Scrutiny
(1) Alienage
Strict Scrutiny applied to discrimination based on alienage - Sugarman v. Dougall p.659
 NYC excluded aliens from civil service jobs, but not higher offices of state executive and elected officials.
UNCONSTITUTIONAL.
 Gov’t argues: the fact that citizens are more loyal than aliens justifies this distinction.
 Classifications based on alienage, like those based on nationality or race, are inherently suspect, and strict
scrutiny is applied.
o B/c aliens are a “discreet and insular” minority. Caroline Products fn 4.
 Court: government interest in limiting participation to those who are w/in the basic conception of a political
community is substantial.
 A flat ban on the employment of aliens in positions that have little, if any relation to State’s legitimate interest
in unconstitutional under 14th E.P.C.  i.e., not narrowly tailored.
o B/c this law applies to low-level employees but not upper level executive or legislative employees.
 BTW: States may require citizenship for voting rights or as a qualification for holding important offices to
preserve the basic conception of a political community.
 Why strict scrutiny for aliens?
o History of discrimination against them.
o Discreet and insular minority  no power in political process.
 Hamilton: this has little or no influence on the court after this case.
o But: alienage is not immutable

(2) Wealth Classifications

No heightened scrutiny for wealth classifications
 They are “discreet and insular minority” but court has not applied strict scrutiny to distinctions drawn on wealth.
o But, it is not immutable, like alienage.
 Court has given strict scrutiny to depravation of fundamental rights (poll taxes unconstitutional; right to counsel;
voting rights only to property holders unconstitutional), but not necessarily to distinctions drawn on wealth alone.
 San Antonio School District v. Rodriquez – per district property tax for public education upheld. (see infra
Education)
o “. . . at least where wealth is involved, the Equal Protection Clause does not require absolute equality or
precisely equal advantages.”
 Court is institutionally incompetent at deciding matters of fiscal policy.
 Also: if poverty were a suspect class, court would have to analyze welfare benefits with strict scrutiny.

© Tal Dickstein, 2002 8

II. Free Speech
1ST AMENDMENT - PROTECTED SPEECH
UNPROTECTED SPEECH
Content-Based Restriction  Strict Scrutiny
(May be suppressed)
Forum-Based Restriction  Intermediate Scrutiny
HIERARCHY OF PROTECTED SPEECH
 Political/Religious speech – Highly Protected (Brandenburg Imminent
Lawless Action test) most protected, but gov’t may censor UTC (i.e.,
“Obscenity” during war time)
(Roth, Defamation
o Ex: Schenk  Brandenburg
Miller) Near v.
But Minnesota “Fighting  Intermediate Speech – Protected
obscenity in But: may Words” o Ex: Offensive AND Political speech (Cohen v. Cali.)
home is not not be Chaplinsky o Ex: Commercial Speech.
illegal subject to  Low-value Speech – Protected (not obscenity)
(Stanley v. P.R.  Interest Balancing Test
Georgia) o Ex: Pornography, digital child porn.
o Ex: Purely offensive speech - Feiner
o But: Child porn (NY v. Ferber) may be prohibited to protect
children – legitimate state objective.

A. Introduction
 1st amendment protections on free speech are not absolute; they depend on the context and nature of the speech.

(1) Ways constitution protects speech

1. © Clause allows free flow of expression b/c public doesn’t have to rely on government for political expression.
2. Congress is required to keep journal of its laws, Executive gives state of union address, Judiciary required to publish
its decisions.
3. Free press

(2) Justifications for protecting speech

 Marketplace of ideas
o “The best test of truth is competition in a market.”
o “He who knows only his side of the case knows little of that” – John Stuart Mill
o Criticism:
 “Truth may win and in the long run may almost always win, but millions of Jews were
deliberately and systematically murdered in a very short period of time.”
 “In the long run we’re all dead” – John Maynard Keynes.
 “Venting” dangerous ideas
o Free market of ideas gives opportunity for dangerous ideas to be “diffused”
o Criticism:
 In world of Internet, there is no communal marketplace of ideas; dangerous ideas are allowed to
“fester”.
 Essential to Representative Democracy
o Communication between government and public to inform government of public will and visa versa.
 Increase Tolerance:
o ≈ to venting function.
 National Identity
o Marketplace of ideas

© Tal Dickstein, 2002 9

 Inalienable / Fundamental right to free speech
o Natural law.
 Self actualization, Autonomy
o Free speech is necessary to be a productive member of society.

B. Content-Based Restrictions (i.e., speech restricted b/c of the message conveyed)

Court applies C.P.D. Test
Whitney Gitlow
Dennis Abrams *Masses
MERE Membership Advocacy ILLEGAL
Mere CPD, Debbs Schenk Incitemen
WORDS ARE w/o intent w/o effect ACTION IS
words are Intent is Prochickl Unclear t to illegal
PUNISHABLE or effect is is PUNISHABLE
punishable irrelevan e Effect C.P.D action
punishable punishable
t
← ← ← Time Line ← ← ← *Only conviction overturned

(1) Expression that includes unlawful conduct

Mere agitation is protected; incitement/advocacy to illegal action is not - Masses Pub. Co. v. Patten (1917) p.1007/24
 P’s magazine, which had tendency to encourage insubordination, was refused from delivery by the post-master
general under Espionage Act of 1917. UNCONSTITUTIONAL – postmaster’s decision, not the Espionage Act.
 May not counsel/urge/incite someone to disobey the law, thus government may censor private speech when it is
a “trigger to illegal action,” but not when it is mere “agitation”.
 ITC: P’s speech is “agitation”, but not incitement to violent resistance
o P’s speech only admired war protesters; he did not encourage emulation of them.
 Hamilton: depends on context:
o ITC, government was not using its war-powers, thus less deference to gov’t.
o Ask: what is likelihood of illegal action, and how bad the illegal action is. If attenuated, speech will be
protected. If direct relationship, censored.

Clear and Present Danger UTC is not protected - Schenk v. US p.1009/25

 D convicted of conspiring to violate Espionage Act of 1917 for advocating resistance to the draft by sending them
docs. UPHELD
 Clear and present danger UTC that substantive evils will come about is not protected.
 ITC: doc would not have been sent if no chance of an effect. Yes CPD.
 “The character of every act depends on the circumstances in which it is done,” “when a nation is at war, many things
that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as
men fight.”
 Hamilton: unclear how present, or what danger must be present to censor speech  it becomes a sliding scale.
 Epilogue of CPD test
o Frohwerk v. US (1919) p.1013
 Convicted under Espionage Act of conspiring to cause refusal of duty in the military and naval
forces of the US. UPHELD.
 “A little breath could kindle a flame of resistance” – causation is more attenuated here.
o Debs v. US (1919) p.1014/27
 Leader of Socialist Party convicted under E.A. for attempting to obstruct the recruiting and
enlistment of service of the US.
 If a purpose and probable effect of the speech, whether incidental or not, was to oppose
war, not protected – even more attenuated.
 Hamilton: when war is the context, mere words may be suppressed.
o Abrams v. US (1919) p.1014/27
 P convicted of conspiring to violate E.A. by throwing leaflets calling for a general strike out his
window. UPHELD.
 Majority: applies Shenk CPD test to uphold conviction. Intent is irrelevant.
© Tal Dickstein, 2002 10
  Holmes Dissent: No intent to cause harm. No “clear and imminent danger”
 ≈ to Masses standard of incitement.
 Advocates marketplace of ideas approach.

Advocacy alone may be suppressed - Gitlow v. NY (1925) p.1019/28

 D convicted under State law prohibiting advocating overthrow of government, for distributing “Left-Wing Manifesto.
UPHELD
 Advocacy alone may be suppressed even w/o evidence of effect on overthrow of gov’t.
o “Advocacy is a spark that may kindle a fire”
 Holmes Dissent: CDP test should be applied regardless of labeling advocacy or speech
o “Every idea is an incitement”
o ITC: there was no chance of actual overthrow of gov’t.

Membership w/o intent or possibility of success may be suppressed - Whitney v. California ( 1927) p.1024/28
 D convicted for attending and remaining at a Socialist Party convention, which promulgated a platform similar to
Left-Wing Manefesto (violent overthrow). UPHELD
 Membership in organization that advocates overthrow of government is punishable even w/o intent or
possibility of successful overthrow of government.
 Braneis Concurrence: must show “clear and imminent danger” to suppress speech.
o Only incitement, not advocacy should be punishable.
o Phil: marketplace of ideas / venting function / increase tolerance / self-actualization

Teaching, advocacy overthrow of government is punishable - Dennis v. US p.1031/29

 D convicted under Smith Act which prohibits knowingly, advocating, teaching overthrow of gov’t for teaching
Communist ideas. UPHELD
 Intent (teaching) to overthrow gov’t alone is enough to convict even w/o action.
 Frankfutter concurrence: balance between speech and security. deference to cong.
 Black /Douglas dissent: must look to whether there is a real danger of success of overthrow of gov’t. None ITC.

---------------------------------------------------------------------------------------------

“Imminent Lawless Action” Test - Brandenburg v. Ohio (1969) p.1040/30

 KKK convicted under Ohio criminal syndicalism act, which prohibited advocacy of illegal action.
UNCONSTITUTIONAL.
 “Imminent Lawless Action” Test
o Mere speech or advocacy is not punishable w/o incitement
 Whitney overruled.
o Must show intent to certain action, possibility of success, imminence.
 Hamilton: how imminent?
o Stronger 1st amendment rights during peacetime

(2) Speech that threatens / criticizes judicial process

Strong 1st Amend. rights when D threatens legal action - Bridges v. California (1941) p.1051
 D convicted for sending letter to Sec. Of Labor criticizing Judge’s decision and threatening a strike.
UNCONSTITUTIONAL
 Under Brandenburg, there is no imminent danger of lawless action (strike is not illegal ITC)
 Hamilton: When no threat of illegal action, courts apply a very high CDP test (b/c no lawless action involved).
 Dissent: worried about affecting impartiality of Judges by intimidation.

(3) Expression that provokes a hostile audience reaction

Speech that is upsetting but not imminent danger is not punishable - Terminiello v. Chicago (1949) p.1056/31
 D convicted for giving speech which “invited dispute” UNCONSTITUTIONAL

© Tal Dickstein, 2002 11

 Speech that is merely upsetting, but does not cause imminent danger is not punishable.
 Ask: is there a threat of danger (not just illegal action).
o What did speaker do? What was audience’s response?

No breach of the peace where no mere agitation but no dangerous effect of the speech - Cantwell v. Conn. (1940)
p.1056/31
 Jehova’s witness arrested for breach of the peace for a speech offensive to Roman Catholics (he left the scene).
UNCONSTITUTIONAL
 No CPD ITC b/c there was no dangerous effect of this speech.

Speech Causing CPD is punishable by most efficient arrest -Feiner v. NY (1951) p.1059/32
 D arrested for offensive disorderly conduct for making disparaging remarks, one person threatened violence.
UPHELD
 Where there is CPD to public peace, police may make efficiency judgment who to arrest – speaker or audience.
o Efficiency is relevant to 1st amendment: who police arrest depends on best way to stem the danger.
 BTW: 42 USC § 1983 makes police officers personally liable for unconstitutional arrests

Speech not causing CPD is not punishable - Edwards v. South Carolina (1963) p.1063/32
 Police arrested 187 civil rights protesters for alleged breach of peace. UNCONSTITUTIONAL
st
 Distinguish Feiner, 1 amendment trumps breach of peace where there is no CPD.
 Hypo: if there was one person threatening many protesters, police should arrest that one person.

Fighting Words are unprotected speech (no 1st amendment protection) - Chaplinsky v. N.H. (1942) p.1066/33
 “Goddam Racketteers” UNPROTECTED FIGHTING WORDS
 Test for unprotectable Fighting Words: what men of common intelligence would understand would be words
likely to cause an average addressee to fight.
o B/c little if no social value is outweighed by social interest in order and morality.
st
 BTW: 1 amendment doesn’t protect most effective means of speech: D could have written his speech down.

When public can avert their eyes, not fighting words - Cohen v. California p.1069
 “Fuck the Draft T-shirt” PROTECTED SPEECH
 Not fighting words when public have opportunity to avert their eyes, also political aspect gives more protection.

Neurenburg Website Case p.Supp/33

 Hamilton:
o W/re to fighting words, context of info determines recipient’s reaction.
 When speech is on the Internet, the context takes it out of fighting words arena.
 When no connection between words and intended action, no suppression of speech.
o W/re to Brandenburg standard is flexible.

(4) Expression that discloses confidential information

Balancing test between interests of security/secrecy and free speech - Landmark Comm. v. Virginia p.1074/34
 D convicted for divulging information regarding confidential matters pending before a judiciary commission.
UNCONSTITUTIONAL
 Gov’t interest: secrecy
 P’s interest: free speech
 Balancing test between interest of secrecy and free speech.
o ITC: No showing that free speech would undermine Gov’ts objectives.

Rebuttable presumption against prior restraint - NY Times v. US (1971) p.1077

 D enjoined from publishing Pentagon Papers containing DOD study about Vietnam. UNCONSTITUTIONAL
 Rebuttable presumption against constitutionality of prior restraint of speech. Burden on gov’t to prove danger
to national security.

© Tal Dickstein, 2002 12

 o ITC, gov’t has not met its burden of proving potential harm to national security.
 Hamilton: if gov’t could show actual and immediate danger to national security, court would uphold prior restraint.
 BTW: there is no right that requires access to governmental information.

C. Over Breadth, Vagueness, Prior Restraint

(1) Over breadth and vagueness – “On its face” constitutional challenges
Breach of peace statute that goes beyond Chaplinsky is overbroad - Gooding v. Wilson p.1092/35
 D convicted for yelling threats to officers under law prohibiting “opprobrious words or abusive language tending to
cause a breach of the peace” UNCONSTITUTIONAL ON ITS FACE
 BLL: Laws may only prohibit unprotected speech (fighting words, obscenity).
 This law is overbroad b/c State courts applied it to speech beyond Chaplinsky fighting words; danger that
protected speech will be suppressed.
o Also, danger that overbreadth will have a chilling effect on free speech.
 NOTE: the way a law is applied determines whether it is overbroad.
 Distinguish: replace “opprobrious words or abusive language” with Chaplinsky test

(2) Prior Restraint

Discretionary Prior-Restraint on speech is unconstitutional - Lovell v. Griffin p.1102/36 (1938)
 D convicted under law prohibiting distribution of “literature of any kind”w/o a licence. UNCONSTITUTIONAL ON
ITS FACE
 When a prior restraint statute gives official “carte-blanche” discretion, there is a danger that content will be
censored unconstitutionally.
 Distinguish: if law proscribed when license would be given based on time, place, cleanup costs, and duration.

No prior restraint for libelous material - Near v. Minnesota p.1106/37 (1931)

 D enjoined under law that prohibited newspapers from printing untrue malicious, defamatory, scandalous material.
 Presumption that Prior Restraint is unconstitutional, (later NY Times v. U.S.) P.R. in only exceptional cases.
 Court would rather allow a suit for libel after material is published, even if speech is not protected.
 Hamilton: but both Prior Restraint and Libel Damages chill libelous speech.

D. Content-Based Restrictions: “Low-Value Speech” (“low-value” ≠ unprotected)

(1) Obscenity
Old obscenity test - Roth v. US (1957)p.1163/38
 Test for unprotected obscenity: B/c obscenity has no social value. No need to apply C.P.D. test.
(1) “Whether to the average person, applying contemporary community standards,
(2) The dominant theme of the material taken as a whole
(3) Appeals to the prurient interest”

Private possession of obscenity is legal – Stanley v. Gorgia p.1170

 Possession of child porn is punishable. B/c interest in protecting children outweighs “home as a castle”.

Sexual obscenity test (“hard core” pornography) – Miller v. California

(a) Whether the average person, applying contemporary community standards would find that the work as a
whole, appeals to the prurient interest
(1) Jury question
(b) Whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the
applicable state law (must be explicitly described to give notice)
(1) Questions of law.
© Tal Dickstein, 2002 13
(c) And whether the work as a whole lacks serious literary, political or scientific value.
(1) Expert testimony.
 Significance: out-of-community experts can testify that there is serious value, and it will not be obscene  represents
liberalized protection of “socially valuable” material.
 Phil of Speech: obscenity has no value, so won’t help educate or communicate
 Criticism: what community standards do we use? Where sent? Where received? Everywhere in between?

In places of public accommodation, gov’t may regulate obscene materials - Paris Adult Theatre v. Slaton p.1174/39
 Porn shop that had warning to keep out children and the faint-hearted out was shut down. UPHELD
 Distinguishable from Stanley v. Georgia

Child porn – while not obscene under Miller (and therefore protected) – may be prohibited NY v. Ferber p.1181/40
 Distinguish: “digitized” child porn is not illegal (assuming not obscenity under Miller) b/c no danger to children in the
making of the film.

(2) Offensive (but still protected) Speech

Intermediate”ish” scrutiny to laws that suppress offensive speech / can avert their eyes? - Cohen v. California
 “Fuck the draft” t-shirt
 BTW: this is not fighting words, not obscenity, so it is protected.
 Political and offensive speech gets mixed intermediate/strict scrutiny  compelling interest, tailoring.
o People able to avert their eyes discount gov’ts interest in protecting sensibilities of public.
 Court talks about vague privacy interest in wearing what you want.
 Context of Vietnam makes it more valuable political speech.

Strict scrutiny to laws suppressing protected speech - Erznoznik v. Jacksonville (1975) p.1190/42
 Law prohibited pornography (non-obscene) on drive-in theaters screens. UNCONSTITUTIONAL
 Gov’t argument: traffic safety / child safety measure.
 Pretextual for content-based censorship b/c not narrowly tailored (underinclusive)
o Law only prohibits pornography not all distracting footage
o ≈ to Gooding v. Wilson issue where law was not tailored to Chaplinsky test.
 Limited privacy interest of people on streets can’t justify content-based censorship of protected speech. (Cohen
v. Cali.)
 Absent “captive audience” or “home invasion”, burden is on viewer to avert their eyes (Cohen v. Cali.)
 Distinguish: if this law was narrowly tailored (i.e., prohibited all distracting footage) it might be upheld.

(3) Limitation on the means of communication

No right to optimal speech forum / Gov’t may time-shift offensive speech - FCC v. Pacifica Foundation p.1193/43
 George Carlin’s 7-dirty words (non-offensive) were moved to nighttime hours. UPHELD
 Gov’t may “time-shift” patently offensive (protected) speech in interest of child protection, as long as speech
does get out at some point.
 This is content-specific  strict scrutiny.
 This is forum regulation  intermediate scrutiny.
 Distinguish: but gov’t doesn’t have complete discretion i.e., can’t say 3-5a.m. window.

Hypo: gov’t requires filtering software on all computers

 “Home is your castle” – Stanley v. Georgia.
 You may determine what is obscene and avert your own eyes – Cohen v. California.

Dial-up porn is not suppressible b/c ≠ radio in Pacifica - Sable Communications v. FCC p.1198/44
 If consumer can chose whether to view speech, no suppression (Cohen v. California. ≠ Pacifica)

Denver Edu. Telecom. v. FCC p.1198/44

© Tal Dickstein, 2002 14

 Court allows FCC to regulate offensive content of public access channels -- inconsistent w/ Reno v. ACLU.
 As long as there is an avenue for speech, government may regulate manner of communication.

Digital child porn upheld - Ashcroft v. Free Speech p.supp/45

 Outlawed digital child porn. UNCONSTITUTIONAL
 Gov’t argues: harm to society, potential child-abuse from this digital child porn.
 When gov’t seeks to suppress protected speech, it must show compelling interest - more than potential harm
o ITC, there is no immediate harm to children b/c none are used in creating the porn. ≠ Ferber.
o Venting function.

Intermediate scrutiny for forum regulation - Young v. American Mini-Theaters p.1204/46 Cf. O’Brien Case.
 Zoning ordinance required porn shops to be 1,000 ft. away from each other. UPHELD
 Intermediate scrutiny for content-neutral regulations. O’Brien
o O’Brien: Gov’t may regulate protected speech if
 Important or substantial gov’t interest
 Gov’t interest is unrelated to suppression of free expression (i.e., content neutral)
st
 Incidental restriction on 1 amendment freedoms is no greater than is essential to the
furtherance of that interest. (tailoring requirement)
 Strict scrutiny for content-based regulation.
 ITC: the initative passes the O’Brien test.

Hypo: if gov’t prohibits racial insults.

 This is overbroad of Chaplinsky
 This is pretextual for content-specific  strict scrutiny.

(4) Hate Speech and Pornography

Content-based distinction violates 1st amendment b/c under and overinclusive - R.A.V. v. City of St. Paul p.1219
 Law prohibits burning crosses, which would arouse anger on basis of race, color creed, religion, gender (yes
fighting-words). UNCONSTITUTIONAL
 Underinclusive b/c it covers more than Chaplinsky fighting words. ≈ Erznoznik v. Jacksonville, Gooding v. Wilson
 Overbroad b/c it may cover protected speech that is not fighting words.

Criminal Conduct is never protected by 1st amendment - Wisconsin v. Mitchell (1993) p.1224/
 State may use overbroad or underinclusive categories when regulating conduct.
o “A physical assault is not expressive conduct protected by 1st amendment”
o Distinguishable from R.A.V., which governed expression.

(5) Symbolic Conduct

IDEAS SPEECH CONDUCT
Always protected, no level of Not absolutely protected. May always be regulated Wisc. v. Mitchell
scrutiny
No threat of harm Ask: what connection to illegal action When speech breaks into overt acts, gov’t
/ public injury? has broad authority b/c danger to public
SYMBOLIC CONDUCT – Intermediate Scrutiny O’Brien

Intermediate Scrutiny for Symbolic Speech - US v. O’Brien p.1302/49

 Law required you to carry draft card. D arrested for burning draft card. UNCONSTITUTIONAL
 Symbolic Speech + No intent to regulate speech = Intermediate Scrutiny
o Important or substantial gov’t interest
o Gov’t interest is unrelated to suppression of free expression
o Incidental restriction on 1st amendment freedoms is no greater than is essential to the furtherance
of that interest. (Tailoring requirement)
© Tal Dickstein, 2002 15
 ITC: gov’t wins b/c it has important interest of organized draft.
 As long as there is an alternate avenue of expression, no guarantee to optimal means of speech.

Apply O’Brien to symbolic speech Barnes v. Glen Theater p.1317/50 / City of Erie p.1320/50
 Complete ban on nudity (strippers) UPHELD.
 This is outer-limits of symbolic speech. governmental interest of public welfare
 Neutral forum regulation w/ incidental effect on protected speech gets intermediate scrutiny.

III. Religion (no levels of scrutiny, everything case-by-case)

A. Free Exercise Clause
(1) Burdening Religious Activity
Content-neutral regulation of religiously motivated conduct Ok - Reynolds Case (1878) p/51
 Ban on polygamy. UPHELD
 Intermediate scrutiny for content-neutral law that effects religiously motivated conduct

Strict scrutiny when gov’t regulates religiously motivated conduct - Sherbert v. Verner (1963)p.1470
 Gov’t deny unemployment benefits from someone who leaves work for religious reasons? UNCONSTITUTIONAL
 Strict scrutiny when gov’t regulates religiously motivated conduct.

Strict scrutiny when gov’t regulates religiously motivated conduct - Wisconsin v. Yoder (1972) p.1471/51
 State required compulsory H.S. attendance. UNCONSTITUTIONAL
o b/c no compelling interest. Amish were home schooling.
 BTW: this would be decided differently under Smith’s low-level scrutiny.

Low-level scrutiny for generally applicable neutral laws - Department of Human Resources v. Smith p.1476/51
 Gov’t drug counselors were fired for using “paoti” a Native-American narcotic and denied unemployment
compensation. UPHELD
 Didn’t follow Sherbert, instead, low-level scrutiny for generally applicable neutral laws
o When deciding what the law targets, purpose is important, not legislative motivation. (see E.P.C. cases)
o “No one may make the law unto himself”
 Epilogue
o Cong. passes Religious Freedom Restoration Act (RFRA) to overrule Smith’s low-level scrutiny
 THUS, ≈ to content-based regulation in free speech cases get strict scrutiny.
 Under RFRA, religious children may be prevented from carrying knives b/c there is a less-
restrictive means (narrow tailoring requirement).
 Under Smith, religious children may not be prevented from carrying knives (normal tailoring
requirement).
o RFRA declared unconstitutional, (1997) so Smith (low-level scrutiny) is the federal standard today.
o But: 11 states still have RFRA statutes making strict scrutiny for generally applicable neutral laws.

(2) Religious Accommodations

 Government may lift the burden caused by law for religious groups if balanced w/ public interest.
o Ex: gov’t may allow peoti use for some religion b/c it is law that forbids it.
 IF accommodations give a special privilege to a religious group apart from lifting burden on religion imposed
by law, violation of Establishment Clause.

Neutral provisions may be used to lift burden w/o giving a special privilege - Church of J.C. v. Amos p.1487/54
 Law exempted nonprofit religious org.s from anti-discrimination in hiring laws for secular activities. UPHELD
 This is a neutral provision, so not a special privilege.
 Court will not decide what constitutes a secular activity v. religious activity.

© Tal Dickstein, 2002 16

 “Best of two evils”
o W/ exemption, court would have to decide what is religious/secular activity  Establishment Clause
issues – keep gov’t out of religious decision making.
o W/o exemption, anti-discrimination laws burden religion  Free Exercise issues – burden on religion.

Religious exemption from sales tax is impermissible accommodation - Texas Monthly p.1491
 Religious publications exempted from sales tax. UNCONSTITUTIONAL
 B/c gov’t is singling religion out for special benefit.
 Inconsistency: religions are exempt from property and income tax (Waltz case).

Allowing religious group to determine school districts is impermissible accommodation - Kiriyas Joel p.1492/55
 Gov’t made orthodox sect their own district to get them $ for in-school special education. UNCONSTITUTIONAL.
 Endorsement of religion problem – no way to know if gov’t would give same benefit to another religion.
 Special Privilege Problem – this gives a special benefit beyond any burden imposed by law.
 Usurping governmental function problem – religious groups should not be allowed to determine gov’t
activities.

Hamilton: Court does a balancing act between religious interest and governmental interest, which are always shifting.

B. Non-Establishment Clause
Gov’t $ for Bussing to Religious Schools OK - Everson v. Board of Education (1947) p.1411
 Neutral law, both as between individual religions and as between religious and non-religious groups, is OK.
 ITC: Gov’t is neutral b/c it pays for bussing for both private and public schools.
st
 1 Amendment creates a “Wall of Separation between Church and State.”

Test for establishment clause challenges - Lemon v. Kurtzman:

Governmental action is invalid if it fails any of the following . . .
(1) does the challenged law have a secular purpose
(2) is the law’s primary effect to advance or inhibit religion
(3) does it create an excessive entanglement of government with religion.

Anti-Coercion Principle - Lee v. Weisman p.1426 (1992)

 School-sponsored, non-sectarian prayer (but conducted by a Rabbi) at graduation. UNCONSTITUTIONAL
 There was direct governmental direction, sponsorship this religious speech.
 There was coercive participation b/c choice between participating and protesting is no choice at all at
graduation commencement. “Social compulsion” ( ≠ Cohen v. California, where public could simply “look
away”.)
 Even non-sectarian prayer constitutes religious speech and may be as divisive as a sectarian prayer.
 Dissent: (Scalia) No real compulsion to participate, Non-sectarian prayer is ok, protect majoritarian rights to exercise
religion.

Nativity Scene doesn’t violate Establishment Clause - Lynch v. Donnelly p.1438 (1984)
 Display of a Christmas nativity scene (crèche) in a public park. UPHELD
 Not a purposeful expression of governmental advocacy of a particular religious message; the purpose is to
promote commercial retail.
 Government may indirectly or incidentally benefit one religion or all religions, but government may not endorse
or advances religion.
 Dissent: Yes, nativity scene does have a sectarian purpose to display gov’t’s approval of Christmas.
 Ask:
o Is there a secular purpose?
o Is there effect of advocating or endorsing a religion or religion in general?

Voucher System doesn’t violate Est. Cl. - Zelman v. Simmons-Harris p.147(supp.) (2002)

© Tal Dickstein, 2002 17

 School voucher system that allows pure private choice, and allows both public and private, religious and non-
religious schools to participate. UPHELD
 Valid secular purpose of providing educational assistance to poor children.
 No effect of endorsing or advancing religion b/c there is independent private choice or where to send the gov’t’s
funds. (Even though 96% of participating students enrolled in religious schools.)
o The law is religiously neutral b/c aid is allocated on basis of neutral, secular criteria that neither favors nor
disfavors religion.
o In fact, there is a disincentive for religious schools (b/c parents must pay more $ overall).
 Dissent: the effect of the law is to benefit religion.

© Tal Dickstein, 2002 18

IV. Implied Fundamental Rights
A. Privileges and Immunities / Incorporation
Slaughterhouse cases p.693/
 City gave a company a monopoly.
th
 P claims right to employment under Privileges and Immunities clause of 14
th
 14 does not create any new rights beyond “fundamental” rights.
 Court uses its intuition about what a free government is and what Privileges and Immunities are
“fundamental”.
 Epilogue: P&I Clause no longer used

INCORPORATION
 Bill of Rights only applicable against the Federal Government.
o 1st amendment does not apply to states. “Congress shall . . . “
o 5th amendment only applies against Fed. gov’t
 Barron v. Baltimore p.702
th th
 9 and 10 open up possibility of implied rights that can be incorporated
o 10th - Reserves rights not granted to fed (assume all previous granted to fed.) to the States.
th
 Then 14 amendment places restrictions on States.
o Incorporation is based on attenuated reasoning of 14th amendment language, which is intentionally
vague. – 14th is overinclusive and underinclusive of the rights in the bill of rights
o “Liberty” in 14th is touchstone of incorporation – ex: implied right to privacy.
 There do seem to be agreed upon natural rights
o Enumerated rights would be worthless w/o implied rights to privacy ect.
th
 Today, court talks about 14 ’s plain language, not implied fundamental rights.

5th amendment not yet incorporated against the states - Adamson v. California (1947) p.705/59
th
 P argues: Freedom from self-incrim. applies to State gov’ts b/c D.P.C. in 14 (against States) implies other rights.
o B/c D.P.C included in both 5 and 14 , thus 5 provisions must be included in 14th provisions.
th th th

th th
 5 amendment not incorporated into 14 b/c it is not fundamental right of freedom ≈ Slaughterhouse cases.
 Significance: we have SELECTIVE INCORPORATION, not complete incorporation

6th amendment right to jury trial is incorporated b/c fundamental - Duncan v. Louisiana p.707
 B/c it pre-dated ratification in England.

REVERSE INCORPORATION
th
 There is no E.P.C. in Bill o Rights, so we read it into 5 amendment D.P.C.
 BTW: This affects gov’t ability to pursue affirmative action programs.

B. Substantive Due Process: Economic Interests

Implied fundamental right to freedom of K - Lochner v. NY
 Max hour labor laws. UNCONSTITUTIONAL
 Court used Substantive Due Process to infer individual right to freedom of K
 Strict scrutiny for economic regulations.

-----------------------------------------------------------------------------------------------------------

Decline of Substantive Due Process - Nebbia v. NY

 Court upheld minimum prices for milk against challenge of violation of right to K.
 Deferential to legislature, low-level scrutiny for economic regulations.
 West Coast Hotel v. Parish

© Tal Dickstein, 2002 19

 o Deference to legislature – institutional incompetence courts lack data gathering / consensus building
ability.

C. Voting
 No right to vote in the constitution, but there are voting provisions in the const.
 How right to vote implied?
o Structure of const.
o History of const.
o Language of const.
o Prior interpretations of const.

Fundamental Right to Vote - Harper v. Virginia p.741

 Va. Had $1.50 poll tax.
 Court implies fundamental right to vote
 E.P.C. can’t be enough b/c this is merely disparate impact, no evidence of purposeful racial discrimination.

Lack of standards for a recount is E.P.C violation - Bush v. Gore (2000)

 Yes fundamental right to vote, E.P.C scrutiny is heightened.

Right to proportional individual voting power under E.P.C. - Reynolds v. Simms p.748
 E.P.C. protects right from vote dilution – each vote must count with equal weight.
o “History of discrimination enlightens evils of racial discrimination”
 Argument against requirement of proportionate voting
o Senate is example of disproportional voting power. But that is a “unique compromise”
o Republican guarantee clause is argument for mirror image of Federal gov’t by state gov’ts.
o But: no E.P.C. burden on Fed. gov’t, thus the Senate.
 BTW: this case can’t be used against makeup for the Senate b/c can’t use reverse incorporation to overpower express
provision in the const.

No right to equal group voting power / At-large voting w/o purposeful discrimination is ok - City of Mobile (1980)
 At-large voting system instead of dividing up into 3 districts – favors a white majority. UPHELD
 Each individual is getting same voting power, even if each group is not getting same representation – no
guarantee of representation equal to your group population.
 Under E.P.C. – this is merely disparate impact, not purposeful discrimination.

D. Education
No fundamental right to public education - San Antonio v. Rodriguez p.795/67
 Educational funding based on property tax. UPHELD
1. B/c no public education at time of framing
2. B/c importance of education does not mean it is fundamental to operation of democracy
3. B/c courts are institutionally incompetent to review State fiscal decisions.
 What level of scrutiny?
o Wealth classifications are not a suspect class
o But, education is more than a mere welfare benefit, so not just rationality review.

Children of aliens may not be denied public education - Plyer v. Doe

 Must give public education to some if any at all.
 No strict scrutiny b/c not based on race – alienage does not get strict scrutiny. (Sugarman distinguished on its facts.)
 No rationality review b/c education is more than a mere welfare benefit
o Generally, classifications on wealth get rationality review
 Intermediate review – aliens are “quasi –suspect in educational context.
 Plyer and Rodriguez seem contradictory.

© Tal Dickstein, 2002 20

 E. Privacy / Abortion
Implied fundamental right to privacy - Griswold v. Conn.
 How implied?
o Penumbra of Bill of Rights
 Enumerated rights in Bill o Rights give rise to penumbra of Bill o Rights, which includes privacy,
association.
o 9th Amendment
 That some rights are reserved implies that there are implied rights.
o 14th Due Process language
 ITC: gov’t has inadequate interest or tailoring (preventing adultery) to justify trampling on right of privacy.

Non-absolute right to abortion – Roe v. Wade

 Woman’s “descending” right of privacy trumps State’s interest in the fetus and woman’s health until point of
viability when state may regulate for safety of mother and fetus’ life.
 BTW: woman’s privacy to begin with (whether she is a minor) will alter this calculus.
 No unfettered right to an abortion

© Tal Dickstein, 2002 21