I.

Judicial Review and Constitutional Structure

a. Methods of Constitutional Interpretation
i. Interpretation or Imagination?
1. The first divide is the split between non Interpretivists and
Interpretivists.
a. Noninterpretivists claims that we should not even attempt
to figure out what the text of the Constitution mans;
instead, we should make it a mirror of our present sense
of fundamental justice.
i. The courts are not limited to constitutional text,
but may import wholly extra constitutional norms
as a source of constitutional decision.
b. Interpretivists insist that the only legitimate form of
judicial review is interpretation of the written text of the
Constitution.
2. Calder v. Bull
a. Facts: Connecticut’s legislature set aside a probate court
decision refusing to approve a will be enacting a law that
required a new hearing. At the second hearing the will
was approved. The heirs who would have taken the
estate’s assets had the will been ineffective challenged the
Connecticut law as an ex post facto law. The Court
rejected that claim, finding that the ex post facto clause
applies only to criminal laws.
b. Opinion: Justice Chase:
i. Men are the fundamental part of society and they
are vital principles to the government which
determine and over-rule abuse of legislative
power.
ii. An act of the legislature cannot be in conflict with
the social compact.
iii. If the ban on ex post facto laws included civil
matters it would severely restrict the authority that
they have to enact laws.
c. Justice Iredell:
i. An act against nature is not necessarily void.
ii. If a law goes against the U.S. Constitution it is void,
but, if a law goes against a state constitution it is
not the courts decision to decide this.
ii. Notes:
1. The Role of Natural Law:
2. Some Difficulties with Noninterpretivism: The meaning of a great
deal of constitutional text is not self-evident, however, almost all
 Interpretivists admit that some sources outside of the text itself
are permissible aids to interpretation.
iii. The Textual Method: Because it is a written constitution it makes sense
to start with its text.
a. Use the text to figure out the meaning.
iv. Historical Argument: May be broken down into two forms. One is
commonly described as “originalism,” which itself takes two forms: (1)
determining the original intent of the drafters of the Constitution or (2)
establishing the original meaning of its text. The other form of historical
argument is less static and is an attempt to derive historical meaning
from the “vectors” of history, the way in which constitutional
understanding has changed over time.
1. Original Intent
a. “intent of the Constitution”
2. Original Meaning
a. What the text meant at the time of the adoption.
II. Chapter VI: Due Process
a. Substantive Due Process:
i. Substantive due process is an elusive concept. The natural reading of
“due process of law,” as well as its historical root in Chapter 39 of Magna
Charta, suggests that the phrase is all about procedure and has nothing
to do with substantive outcomes. However elusive, from the beginning
of American constitutional law there has ben a doctrinal voice that insists
there are unwritten individual rights that should be judicially protected
against government invasion.
1. Fletcher v. Peck = The Court ruled that Georgia could not validly
repeal its conveyance of the “Yazoo” lands, even though the
original grant had been obtained through mammoth bribery. The
repeal was invalid, said Chief Justice Marshall for the Court,
because it was inconsistent with “certain great principles of
justice, whose authority is universally acknowledged” but that are
not embedded in constitutional text. “It may well be doubted,
whether the nature of society and of government does not
prescribe some limits to the legislative power.” Thus the Court
was unanimous that “Georgia was restrained, either by general
principles which are common to our free institutions, or by the
particular provisions of the Constitution” from revoking its grant.
ii. Some liberties not mentioned in the Constitution but identified by the
Court are considered so fundamental to the idea of liberty that their
invasion by government is presumed to be void and can be sustained only
if the government justifies the invasion.
1. Substantive due process, then, is simply the major doctrinal part
of a larger constitutional enterprise of judicial protection of
fundamental but unwritten rights.
iii. Substantive due process has had two eras. The first was an era, not
repudiated, in which economic regulations coercing private property and
contracts were struck down as offensive to an unwritten liberty of
contract. The second era, still continuing, is one in which some
government regulations of intimate relationships or decisions have been
invalidated.
1. Substantive due process is and always has been highly
controversial.
iv. The Incorporation Doctrine
1. Perhaps the most enduring monument of substantive due process
is the incorporation doctrine, by which most of the substantive
guarantees of the Bill of Rights have been incorporated into the
Fourteenth Amendment’s due process clause and thus made
applicable to the states.
2. How does the 14th Amendment incorporate the Bill of Rights to
the states?
a. Does it do so selectively? Or all at once?
3. Barron v. Baltimore
a. Facts: Baltimore diverted streams, flushing silt and sand
into the harbor, rendering Barron’s wharf useless. Barron
sued, claiming the city had taken his property for public
use without just compensation in violation of the Fifth
Amendment. He argued that because the “takings” clause
is “in favor of the liberty of the citizen, it ought to be so
construed as to restrain the legislative power of a state, as
well as that of the United States.
b. Holding: Justice Marshall (Nationalist = nature of the union
 people > states)
i. The constitution was ordained and established by
the people of the United States for themselves, and
not for the government of the individual states.
Each state established a constitution for itself, and,
in that constitution, provided such limitations and
restrictions on the powers of its particular
government as its judgment dictated. The fifth
amendment must be understood as restraining the
power of the general government, not as
applicable to the states.
ii. Had the people of the several states required
additional safeguards to liberty from the
apprehended encroachments of their particular
governments: the remedy was in their own hands,
and would have been applied by themselves.
 1. The unwieldy and cumbrous machinery of
procuring a recommendation from two-
thirds of congress, and the assent of three-
fourths of their sister states, could never
have occurred to any human being as a
mode of doing that which might be effected
by the state itself. Had the framers of these
amendment intended them to e limitations
on the powers of the state governments,
they would have imitated the framers of
the original constitution, and have
expressed that intention.
4. Slaughter-House Cases
a. Facts: Apparently as a public health measure, Louisiana
chartered the Crescent City Live-Stock Landing and
Slaughter-House Company and gave it a 25-year monopoly
over livestock slaughtering in an around New Orleans.
Although other butchers were required to close, they were
given the right to slaughter animals at the Crescent City
Company’s abattoir, upon payment of fees fixed by
statute. The excluded butchers contended that the law
deprived them of their right to exercise their trade, and
that by so doing Louisiana had violated each of the
Fourteenth Amendment’s due process, equal protection,
and privileges and immunities clauses.
b. Issue: Does the privileges and immunities clause of the
Fourteenth Amendment mean that the Bill of Rights
applies to the states?
c. Holding: The Court held to a narrow interpretation of he
amendment and ruled that it did not restrict the police
powers of the state. It held that the Fourteenth
Amendment’s Privileges or Immunities Clause affected
only right of US citizenship, not state citizenship, so the
butcher’s’ Fourteenth Amendment rights had not been
violated.
i. The Court viewed due process in a procedural light
rather than substantively. The Court also heal that
the amendment was primarily intended to protect
former slaves and so could not be broadly applied.
d. Reasoning: Justice Miller:
i. The one pervading purpose found in the
Thirteenth, Fourteenth, and Fifteenth Amendments
was to secure the freedom of the slave race, the
security and firm establishment of that freedom,
 and the protection of the newly made freeman and
citizen from the oppressions of those who had
formerly exercise unlimited domination over him.
1. However, this does not mean that no one
else can enjoy the protections of these
amendments. Both the language and spirit
of these articles are to have their fair and
just weight in any question of construction.
ii. The Fourteenth Amendment starts by defining
citizenship: all persons born within the United
States and subject to its jurisdiction citizens of the
United States.
1. A man may be a citizen of the United States
without being a citizen of a State. He must
reside within the State to make him a
citizen of it, but it is only necessary that he
should be born or naturalized in the United
States to be a citizen of the Union. It is
quite clear, then, that there is a citizenship
of the United States, and a citizenship of a
State, which are distinct from each other,
and which depend upon different
characteristics or circumstances in the
individual.
iii. The second part of the Fourteenth Amendment is
also just as elusive: it states that “no State shall
make or enforce any law which shall abridge the
privileges or immunities of citizens of the United
States.”
1. No such privileges and immunities are to be
found if those we have been considering
are excluded we venture to suggest some
which owe their existence to the Federal
government, its National character, its
Constitution or its laws.
iv. The petitioners do not overcome the burden that
the amendments are to be used for newly freed
race. It is so clearly a provision for that race and
that emergency, that a strong case would be
necessary for its application to any other.
v. Miller believed that the first sentence of the
Fourteenth Amendment (“All persons born and
naturalized in the United States and subject to the
jurisdiction thereof, are citizens of the United
 States and of the State where they reside”)
differentiated between two citizenships, one of the
US and another of the state. Furthermore, the
second sentence forbidding states from making
“any law which shall abridge,” applied only to
federal rights.
1. Thus, the Privileges and Immunities Clause
of the Constitution only protected right
guaranteed by the United States, not
individual states.
2. If the Privileges or immunities clause
protected the civil right of citizens of a stat
from that stet, the Fourteenth Amendment
would in essence be granting the federal
government the power to protect all civil
rights that had previously been protected
by the states, and in the absence of
language which expresses such a purpose
too clearly to admit of doubt, that was too
radical a change to be within the scope of
the Fourteenth Amendment.
e. Dissent: Justice Field
i. If the privileges and immunities clause only refers
to such privileges and immunities as were before
its adoption specially designated in the
Constitution or necessary implied as belonging to
citizens of the United States, it was a vain and idle
enactment, which accomplished nothing, and most
unnecessarily excited Congress and the people on
its passage.
ii. The privileges and immunities designated are those
which of right belong to the citizens of all free
governments. Clearly among these is the right to
pursue a lawful employment in a lawful manner,
without other restraint than such as equally affects
all persons.
iii. Equality of right in the lawful pursuits of life,
throughout the whole country, is the distinguishing
privilege of citizens of the United States.
1. The State may prescribe such regulations
for every pursuit and calling of life as will
promote the public health, secure the good
order and advance the general prosperity of
society, but when once prescribed, the
 pursuit of calling must be free to be
followed by every citizen who is within the
conditions designated, and will conform to
the regulations.
iv. As it hinders the one from working at what he
thinks proper, so it hinders the others from
empowering whom they think proper.
v. Accepted Campbell’s reading of the amendment as
not confined to protection of freed slaves but
embraced the common law presumption in favor of
an individual right to pursue a legitimate
occupation.
1. Field’s reading of the due process clause of
the amendment would prevail in future
cases in which the court read the
amendment brodly to protect property
interest against hostile state laws.
f. Dissent: Justice Bradley:
i. The right of a State to regulate the conduct of its
citizens is undoubtedly a very broad and extensive
one, and not to be lightly restricted. But there are
certain fundamental right which this right to
regulation cannot infringe.
1. It may prescribe the manner of their
exercise, but it cannot subvert the right
themselves.
ii. The fundamental right can only be interfered with
by lawful regulations necessary or proper for the
mutual good of all.
1. The individual citizen must be left free to
adopt such calling, profession, or trade as
may seem to him most conducive to his
betterment.
2. The right to choose one’s calling is an
essential part of that liberty which it is the
object of government to protect; and a
calling, when chosen, is a man’s property
and right.
a. No privilege or immunity is more
essential and fundamental than the
right to follow such profession or
employment as each one may
choose, subject only to uniform
regulations equally applicable to all.
 iii. To compel a butcher to slaughter his cattle in
another person’s slaughter-house and pay him a
toll therefore, is such a restriction upon the trade
as materially to interfere with its prosecution.
1. It is onerous, unreasonable, arbitrary, and
unjust.
5. Notes
a. The Range of Interpretations of the Slaughter-House
Cases. The majority’s interpretation makes sense against
the antebellum background of reliance upon state
constitutions to prevent state governments from intruding
upon the liberties of its citizens. But the problem with the
majority’s interpretation is that the Fourteenth
Amendment definitely was intended to create new federal
limits upon the ability of states to invade the liberties of its
residents. Reliance upon the difference in right possessed
by federal and estate citizens made the sole office of the
privileges and immunities clause the protection of right
already given by some other federal law, thus rendering
the clause redundant.
i. Justice Miller thought this was necessary to avoid
radical change to the whole theory of the relations
of the State and Federal government to each other
and of both these governments to the people, but
that quite arguably was precisely what the authors
of the amendment had in mind.
ii. The dissenters ‘view that all citizens of a free
government had a right to engage in any lawful
calling, subject only to valid police regulations, left
two major issues unresolved. What determines the
validity of a trade or occupation? Presumably the
dissenters answer was the common law, for it was
Louisiana’s statutory alternation of common law
principles that offended the dissenters.
1. The dissenters were okay with the
inspection of the slaughter houses and
where they were to be located, but the
monopoly on the slaughter houses went
too far.
iii. A third interpretation was provided much later by
advocates of total incorporation of the Bill of Rights
into the Fourteenth Amendment’s due process
clause. Justice Black asserted that one of the chief
objects that the Fourteenth Amendment’s
 privileges and immunities clause was intended to
accomplish was to make the Bill of Rights
applicable to the states.
b. The Rights of Federal Citizenship: Not an Empty Category.
In Saenz v. Roe, the Court invalidated a California law
restricting the welfare benefits of new residents for the
first year of their residency in California to the level
provided by their former state of residence. In doing, the
Court ruled that one aspect of the right to travel is
protected not only by the new arrival’s status as a state
citizen, but also by her status as a citizen of the United
States.
c. Incorporation: From Privileges and Immunities to Due
Process: Once the Court had wrung most of the
constitutional juice from the Fourteenth Amendment’s
privileges and immunities clause, thereby destroying that
clause’s potential to incorporate the Bill of Rights, the urge
to apply the bill of Rights to the states gravitated to the
due process clause. In the process, the Court was required
to formulate criteria for deciding which Bill of Rights
guarantees were to be recognized as part of the substance
guaranteed by the due process clause.
i. The first case to incorporate a guarantee contained
in the Bill of Rights into the due process clause was
Chicago, B. & Q.R.R. v. Chicago.
1. The Court ruled that the takings clause of
the Fifth Amendment was applicable to
states and their political subdivision as an
aspect of the Fourteenth Amendment’s
guarantee of due process. The Court relied
upon natural law notions to reach this
conclusion, and also relied heavily on the
idea that unjustly compensated
interference with vested property rights
was a denial of due process.
ii. Twinning v. New Jersey, the Court decided that
New Jersey had not violated due process by
instructing a jury that it could draw unfavorable
inference from criminal defendant’s failure to
testify.
iii. Palko v. Connecticut the Court upheld
Connecticut’s practice of permitting the state to
appeal criminal cases, although it assumed that the
 double jeopardy clause of the Fifth Amendment
would bar the federal government from doing so.
1. The selective incorporation approach
exemplified by Palko has always
commanded a majority of the Court.
d. The Continuing Evolution of Incorporation. In McDonald v.
City of Chicago, the Supreme Court ruled that the Second
Amendment right to possession of firearm for purposes of
self-defense was “fundamental to our scheme of ordered
liberty” and thus applicable to the states by the
Fourteenth Amendment.
v. The Rise and Fall of Economic Rights as the Substance of Due Process
1. The Supreme Court was not alone in flirting with due process as a
sanative limit on legislation interfering with vested property
rights. The rights to acquire, use, possess, and dispose of
property became increasingly important in the ever-expanding
economy of the nineteenth century.
2. Wynehamer v. People: in which the New York Court of Appeals
relied on the New York constitutions’ due process clause to
invalidate a liquor prohibition statute that made it a crime to
possess liquor owned prior to the law’s enactment .
a. Since the law annihilates the value of property, the owner
of property is deprived of it within the spirit of a
constitutional provision intended expressly to shield
private rights from the exercise of arbitrary power.
3. Munn v. Illinois: The Court upheld Illinoi’s regulation of grain
storage rates, concluded that governments could regulate private
property when it is “affected with a public interest,” or “used in a
manner to make it of public consequence, and affects the
community at large.
4. Mugler v. Kansas, the Court upheld a Kansas law prohibiting
alcoholic beverages against a challenge brought by Mugler, a
brewer, who contended that the law deprived him of his property
without due process.
a. In dicta, the Court observed that laws having “no real or
substantial relation” to a state’s legitimate police powers,
or which are “palpable invasion of rights secured by the
fundamental law” would be struck down.
5. Santa Clara County v. Southern Pacific Railroad: the Court held
that corporations were persons for purposes of the Fourteenth
Amendment, opening the door for corporate challenged to the
constitutional validity of economic regulations.
6. .
7. .
8. Lochner v. New York
a. Facts: New York Law prohibited bakery workers from
working more than 10 hours daily or 60 hours per week.
b. Issue: Whether the New York statute is a police power of
the state?
c. Holding: There is no direct link to the police power of the
state that would warrant an intrusion of the individual
right to contract for her own employment.
d. Reasoning: Peckham
i. The statute necessarily interferes with the right of
contract between the employer and employees,
concerning the number of hours in which the latter
may labor in the bakery of the employer.
1. The general right to make a contract in
relations to his business is part of the liberty
of the individual protected by the due
process clause of the Fourteenth
Amendment of the Federal Constitution.
ii. There are certain powers existing in the
sovereignty of each Stat, somewhat vaguely
termed police powers, that relate to the safety,
health, morals and general welfare of the public.
1. However, there must be limits on what the
state could call police power or there would
be no stopping state legislatures from
passing laws that said they had to do with
police powers of the state even though they
have no foundational claim.
iii. If the act be within the power of the State it is
valid, although the judgment of the court might be
totally opposed to the enactment of such a law.
iv. There is no reasonable ground for interfering with
the liberty of person or the right of free contract,
by determining the hours of labor, in the
occupation of a baker.
1. There is no contention that bakers as a class
are not equal in intelligence and capacity to
men in other trades or manual occupations,
or that they are not able to assert their
rights and care for themselves without the
protecting arm of the State, interfering with
their independence of judgment and of
action.
 2. Viewed in the light of purely labor law, with
no reference whatever to the question of
health , we think that a law like the one
before us involves neither the safety, the
morals nor the welfare of the public, and
that the interest of the public is not in the
slightest degree affected by such an act.
a. The law must be upheld, if at all, as
a law pertaining to the health of the
individual engaged in the occupation
of a baker.
i. Clean and wholesome bread
does not depend upon
whether the baker works but
ten hours per day or only
sixty hours a week.
v. The act must have a more direct relation, as a
means to an end, and the end itself must be
appropriate and legitimate, before, and act can be
held to be valid which interferes with the general
right of an individual to be free in his person and in
his power to contract in relation to his own labor.
1. There is no reasonable foundation for
holding this to be necessary or appropriate
as a health law to safeguard the public
health or the health of the individuals who
are following the trade of a baker.
2. There must be more than the mere fact of
the possible existence of some small
amount of unhealthiness to warrant
legislative interference with liberty.
vi. The act is not, within any fair meaning of the term,
a health law, but is an illegal interference with the
rights of individuals, both employers and
employees, to make contracts regarding labor
upon such terms as they may think best, or which
they may agree upon with the other parties to such
contracts.
vii. It is not possible in fact to discover the connection
between the number of hours a baker may work in
the baker and the healthful quality of the bread
made by the working man.
e. Dissent: Harlan
 i. This statute was enacted in order to protect the
physical well-being of those who work in bakery
and confectionery establishments.
ii. In determining the question of power to interfere
with liberty of contract, the court may inquire
whether the means decided by the State are
germane to an end which may be lawfully
accomplished and have a real or substantial
relation to the protection of health.
1. It would be impossible to say that there is
no connection between the mans employed
by the State and the end sought to be
accomplished by tis legislation.
f. Dissent: Holmes
i. States may regulate life in many ways which we as
legislators might think as injudicious or if you like
as tyrannical as this, and which equally with this
interfere with the liberty to contract.
ii. I think that the word liberty in the Fourteenth
Amendment is perverted when it is held to prevent
the natural outcome of a dominant opinion, unless
it can be said that a rational and fair man
necessarily would admit that the statute proposed
would infringe fundamental principles as they have
been understood by the traditions of our people
and our law.
9. Notes
a. A modern Paradox: The Lochner version of substantive
due process has been repudiated. The contemporary
Court asserts that Lochner was wrong and that its view of
substantive due process was illegitimate.
b. Should Due Process Protect Unenumrated Rights?
c. Are Economic Liberties Not Constitutionally
Fundamental? The test of the due process clause protects
liberty – without qualification. Because there is not
textual support for reading constitutionally fundamental
into the document as a device to expand or limit
constitutionally protected liberty, the argument must be
grounded in some other source.
i. Coopage v. Kansas Concluded that the right to
personal property includes the right to make
contracts. The Coppage Court stuck down a Kansas
law prohibiting employment contrast that
 contained an employee promise to to join a labor
union.
d. Was the Court’s Standard of Review Too Strict? Courts
defer to legislative judgments about infringements of
liberties that courts think are not fundamental but show
no deference to legislative judgments about infringements
of liberties that courts regard as constitutionally
fundamental.
10. Note: The Lochner Era: hardly a Monolithic Laissez-Faire
Jurisprudence
a. Adair v. United States – struck down a federal law that
prohibited interstate railroad form enforcing contracts
that required their employees, as a condition of
employment, to promise not to join a labor union.
i. Government intervention to assure workers
unfettered ability to organize for collective
bargaining purpose was perceived as a form of
private benefit – a skewing of common law
contractual freedom to benefit one side of the
bargaining duo.
b. Coppage v. Kansas – the Court struck down a Kansas
statute prohibiting all employers from using such
contracts.
c. Muller v. Oregon – upheld an Oregon law that limited
women to no more than 10 hours of labor a day.
i. Liberty of contract “is not absolute,” said the Court.
The Court justified a law that would be void as
applied to men by citing the “inherent difference
between the two sexes,” the public interest in
“health mothers,” and the need to “protect
women.”
d. Bunting v. Oregon – the Court upheld an Oregon law that
required overtime pay after 10 hours of labor in a day and
also barred anyone from working more than 13 hours in a
day.
e. Adkins v. Children’s Hospital – the Court struck down a D.C.
law prescribing minimum wages for women.
i. The Court seized on the Nineteenth Amendment as
proof that women were not equal to men and thus
no longer warranted special legal treatment. A
minimum wage, said the Court, was simply “a
naked, arbitrary exercise” in political power
designed to benefit some women at the expense of
their employers and other women who would lose
 their jobs because their continued employment at
the specified minimum wage was no loner
economically viable.
f. Nebbia v. New York – New York sought to stabilize milk
prices to preserve an adequate milk supply in the midst of
a ruinous economic depression that threatened to drive
many dairy farmers into extinction by setting nine cents as
the retail price of a quart of milk. Nebbia, a retail grocer in
Rochester convicted of selling milk for less than the fixed
price, appealed on the ground that New York could not
constitutionally fix milk prices. The Court 5-4, upheld the
regulation, reasoning that the means selected had a real
and substantial relation to the object sought to be
attained. A state, said the Court is free to adopt whatever
economic policy may reasonably be deemed to promote
public welfare, and to enforce that policy by legislation
adapted to its purpose.
g. West Coast Hotel Co. v. Parrish – After Washington
enacted a minimum wage law for women, the West Coast
Hotel owner contended that the law violated substantive
due process because it infringed upon liberty of contract.
Even though the Court had struck down an almost
identical such law in Adkins v. Children’s Hospital, the
Court upheld Washington’s law and overruled Adkins.
i. The law was not arbitrary or capricious because
Washington was clearly entitled to consider the
situation of women in employment, the fact that
they are in the class receiving the least pya, that
their bargaining power is relatively weak, and that
they are the ready victims of those who would take
advantage of their necessitous circumstances.
ii. The law reasonably furthered a legitimate public
purpose because the denial of living wage is not
only detrimental to worker heath and well being
but cases a direct burden for their support upon
the community.
h. United States v. Carolene Products - Federal law banned
the interstate shipment of filled mil – milk from which the
butter-fat has been removed and vegetable oils
substituted. Congress had concluded that the substitution
of vegetable oil for animal fat result in undernourishment,
although in fact the statue represented a triumph of the
dairy industry over vegetable oil processors.
 i. The Court upheld the law against a Fifth
Amendment due process challenge.
ii. The congressional findings of fact were necessary
because the existence of fat supporting the
legislative judgment is to be presumed.
iii. Regulatory legislation affecting ordinary
commercial transactions is constitutional unless
the challenger proves that there is not rational bias
for the legislation.
vi. The Modern Revival: “Privacy” Rights
1. The Court uses the due process clauses to protect an ill-defined
cluster of noneconomic personal interest that the Court things are
critical to human autonomy.
2. Meyer v. Nebraska – Meyer was convicted of the crime of
teaching German to children.
a. The Court reversed his conviction, opining that the
substantive “liberty” protected by due process included
the right “to acquire useful knowledge, to marry, establish
a home and bring up children, and generally to enjoy those
privileges long recognized at common law as essential to
the orderly pursuit of happiness by free men.
3. Peirce v. Society of Sisters – Oregon enacted a law requiring all
children to attend public schools.
a. A unanimous Court invalidated the law, finding that
Oregon had shown no justification for its interference with
the liberty of parents and guardians to direct the
upbringing and education of children under their control.
4. Skinner v. Oklahoma – Oklahoma mandated sterilization of people
thrice convicted of felonies involving moral turpitude, which mean
that repeat white-collar criminals were not subject to sterilization
but recidivist chicken thieves such as Skinner were.
a. The Court emphasized that the law involves one of the
basic civil rights of man.
b. Marriage and procreation are fundamental to the very
existence and survival of the race.
c. The Court sated that these factors were not raised to
reexamine the scope of the police power, but merely in
emphasis of the Court’s application of strict scrutiny.
5. Contemporary substantive due process proceeds on two tracks.
a. Courts first determine whether a claimed right is a
fundamental liberty.
i. If so, a law infringing upon the right will be
subjected to strict scrutiny; otherwise the law is
subject only to minimal scrutiny.
 1. Under strict scrutiny, the law is presumed
void: The government must prove that the
infringement is necessary to achieve a
compelling government objective.
2. Under minimal scrutiny, the law is
presumed valid: The challenger must prove
that the la is is not rationally related to a
legitimate state interest.
b. Incorporation of Bill of Rights guarantees into the due
process clause o the Fourteenth Amendment is another
form of substantive due process.
i. Only those rights regarded3 as fundamental are
entitled to be incorporated.
6. Griswold v. Connecticut
a. Facts: Griswold, a Planned Parenthood official, and
Buxton, a physician gave information, instruction, and
medical advice to married person as to the means of
preventing conception. Connecticut made it a crime to
using any drug, medicinal article or instrument of the
purpose of preventing conception and impose equal
criminal penalties on any person who assists, abets,
counsels, cause, hires or commands another to use a
contraceptive device.
b. Issue: Whether the Constitution protect the right of
married privacy against state restriction on a couple’s
ability to be counseled in the use of contraceptives?
c. Holding: There is a right of privacy to be found in the
shadows and emanations of other constitution
protections, such as the self-incrimination clause of the
Fifth Amendment that protects privacy.
d. Reasoning:
i. The right of freedom of speech and press includes
not only the right to utter or to print, but the right
to distribute, the right to receive the right to read
and freedom of inquiry, freedom of though, and
freedom to teach.
1. Similarly, while association is not expressly
included in the First Amendment its
existence is necessary in making the express
guarantees fully meaningful.
ii. Various guarantees create zones of privacy.
1. The right of association contained in the
penumbra of the First Amendment is one.
 2. The Third Amendment in its prohibition
against the quartering of soilders in any
house in time of peach without the consent
of the owner is another facet of that
privacy.
3. The Fourth Amendment explicitly affirms
the “right of the people to be secure in their
person, house papers, and effect against
unreasonable search and seizures.”
4. The Fifth Amendment in its Self-
Incrimination Clause enables the citizen to
create a one of privacy which government
may not force him to surrender to his
detriment.
5. The Ninth Amendment provides the
enumeration of the Constitution, of certain
rights, shall not be construed to deny or
disparage others retained by the people.
6. The Fourth and Fifth Amendment protect
against all governmental invasion of the
sanctity of a man’s home and the privacies
of life.
iii. The case concerns a law which, in forbidding the
use of contraceptive rather than regulating their
manufacture or sale, seeks to achieve its goals by
means having a maximum destructive impact upon
that relationship.
1. Such a law cannot stand in light of the
familiar principle that a governmental
purpose to control or prevent activities
constitutionally subject to state regulation
may not be achieved by means which
sweep unnecessarily broadly and thereby
invade the area of protect freedoms.
iv. We deal with a right of privacy older than the Bill of
rights…Marriage is…an association that promotes a
way of life, not causes; a harmony in living, not
political faiths; a bilateral loyalty, not commercial
or social projects.
e. Concurrence: Goldberg
i. The concept of liberty protects those personal
rights that are fundamental, and is not confided to
the specific terms of the Bill of Rights.
 1. There is authority to back this theory up in
the Ninth Amendment which reveal that
eth Framers of the Constitution believed
that there ware additional fundamental
rights, protected from governmental
infringement, which exist alongside those
fundamental rights specially mentioned in
the first eight constitutional amendments.
ii. In determining which rights are fundamental,
judges must look to the traditions and collective
conscience of our people to determine whether a
principle is so rooted there as to be ranked as
fundamental.
1. The Court had held that where fundamental
personal liberties are involved, they may
not be abridged by the States simply on a
showing that a regulatory statue has some
rational relationship to the effectuation of a
proper state purpose.
2. Were there is a significant encroachment
upon personal liberty, the State may prevail
only upon showing a subordinating interest
which is compelling. The law must be
shown necessary and not merely rationally
related.
iii. Connecticut does have statues that curb the
alleged concerns of the state.
1. These statues demonstrate that means for
achieving the same basic purpose of
protecting marriage fidelity are available to
Connecticut without the need to invade the
area of protected freedoms.
2. The Court’s holding today in no way
interferes with a State’s proper regulation
of sexual promiscuity or misconduct.
f. Concurrence: Harlan
i. In my view, the proper constitution inquiry in this
case is whether this Connecticut statue infringes
the Due Process Clause of the Fourteenth
amendment because it violates basic values
implicit in the concept of ordered liberty.
ii. Due process has not been reduced to any formula;
its content cannot be determined by reference to
any code.
 1. The best that can be said is that through the
course of this Court’s decisions it has
represented the balance which our Nation,
built upon postulates of respect for liberty
of the individual, has struck between that
liberty and the demand of organized
society.
iii. Since the statue abridges important fundamental
liberties protected by the Fourteenth Amendment,
it will not do to urge in justification of that
abridgment simply that the statue is rationally
related to the effectuation of a property state
purpose.
g. Concurrence: White
i. I wholly fail to see how the ban on the use of
contraceptives by married couples in any way
reinforces the State’s ban on illicit sexual
relationships.
ii. I find nothing in this record justifying the sweeping
scope of this statue, with its telling effect on the
freedoms of married person, and therefore
conclude that it deprives such person of liberty
without due process of law.
h. Dissent: Black
i. Government is allowed to invade privacy unless
prohibited by some specific constitutional
provision.
ii. The power to make such decisions is of course that
of a legislative body.
1. If you want change amend.
i. Dissent: Stewart
i. The Court does not point to a specific Amendment
that the Connecticut law violates.
ii. It is not the function of the court to decide cases on
the basis of community standards.
1. It is the essence of judicial duty to
subordinate our sown personal view, our
own ideas of what legislation is wise and
what is not.
2. If the law does not reflect the standards of
the people of Connecticut, they can freely
exercise their rights to persuade their
elected representatives to repeal it.
7. Notes:
a. Sources of the “Privacy” Right. Where is the privacy right
grounded?
i. Incorporated Bill of Rights guarantees. Justice
Douglas’s majority opinion invokes the metaphor
of penumbral shadows cast by the Bill of rights to
connect the unwritten privacy right to specific
constitutional text that had already been
incorporated into the Fourteenth Amendment’s
due process clause.
ii. Implied from tradition and history.
1. Michael H. v. Gerald D. – At issue was the
validity of a California law providing that a
child born to a married woman living with
her husband is conclusively presumed to be
a child of the marriage. Victoria was born to
Carole and Gerald D., a married couple, but
scientific tests established a better than 98
percent probability that Michael H., Carole’s
sometime lover, was Victoria’s father.
California courts rejected Michael’s attempt
to establish himself as Victoria’s father,
relying upon the statutory presumption to
treat Michael as a legal stranger to Victoria.
Michael claimed that eh statue was an
unjustified infringement upon his
fundamental liberty to maintain a parental
relationship with his natural children and
thus violated the Fourteenth Amendment.
a. The Court rejected his claim, finding
that an adulterous father has no
fundamental liberty interest in
creating or maintaining a parental
relationship with a child born into
another’s marriage.
i. Justice Scalia relied on a
deeply rooted tradition that
the presumption of
legitimacy was a
fundamental principle of the
common law. He noted an
absence of authority
addressing specifically the
power of the natural father
to assert parental rights over
 a child born into a woman’s
exiting marriage with
another man and observed
that since it is Michael’s
burden to establish that such
a power is so deeply
embedded within out
traditions as to be a
fundamental right, the lack
of evidence alone right
defeat his case. But the
evidence shows that even in
modern times the ability of a
person is Michael’s position
to claim paternity has not
been generally
acknowledged.
ii. Justice Brennan stated that
the plurality ignores the kind
of society in which our
Constitution exists. We are
nor an assimilative,
homogeneous society, but a
facilitative, pluralistic one, in
which we must be willing to
abide someone else’s
unfamiliar or even repellant
practice because the same
tolerant impulse protects our
own idiosyncrasies. Liberty
must include the freedom
not to conform. The plurality
squashes this freedom by
requiring specific approval
from history before
protecting anything in the
name of liberty. This is not
the living charter that I have
taken to be our Constitution;
it is instead a stagnant,
archaic, hidebound
document steeped in the
prejudices and superstition
of a time long past.
 iii. The Ninth Amendment.
1. The Ninth Amendment was intended to
prevent any inference that the federal
government possessed powers other than
those enumerated in the Constitution, but
the Ninth Amendment was also intended to
establish that the liberties enumerated in
the Constitution are not an exhaustive list
of human liberties.
b. Scope of the Privacy Right.
i. The majority opinion and both concurring opinions
in Griswold emphasize the fact the Connecticut’s
statute prohibited married persons from the use of
contraceptive.
ii. Eisenstadt v. Baired, the Court struck down on
equal protection grounds a Massachusetts
prohibition on the distribution of contraceptives to
unmarried person.
1. The Court ruled that the law was not
relationally connected to the legitimate
objective of deterring premarital sexual
intercourse because it would be
unreasonable to assume that
Massachusetts has prescribed pregnancy
and the birth of an unwanted child as
punishment for fornication, and
misdemeanor.
2. The Court rejected the state’s assertion that
a prohibition on contraception was
legitimate:
a. Whatever the rights of the individual
to access to contraceptives may be,
the rights must be the same for the
unmarried and the married alike…it
is true that in Griswold the right of
privacy in question inhered in the
marital relationship. Yet the marital
couple is not an independent entity
with a mind and heart of its own,
but an association of two individuals
each with a separate intellectual and
emotional makeup. If the right of
privacy means anything, it is the
right of the individual arrived or
 single, to be free from unwarranted
governmental intrusions into
matters so fundamentally affecting a
person as the decision whether to
ear or beget a child.
vii. Abortion
1. Roe v. Wade
a. Facts: The Texas statue under attack make procuring an
abortion a crime except when performed upon medical
advice to save the life of the pregnant woman. Roe
claimed that the Texas statues impurely invade her right as
a pregnant woman to choose to terminate her pregnancy.
Appellant would discover this right in the concept of
personal “liberty” embodied in the Fourteenth
Amendment’s Due Process Clause; or in personal, marital,
familial, and sexual privacy said to be protected by the Bill
of Rights or its penumbras; or among those rights reserved
to the people by the Ninth Amendment.
b. Issue:
c. Holding:
d. Reasoning:
i. When most criminal abortion laws were first
enacted, the procedure was hazardous.
1. This, it has been argued that a State’s real
concern in enacting a criminal abortion law
was to protect the pregnant woman.
2. However, modern medical techniques have
altered this situation and abortions prior to
the end of the first trimester is now
relatively safe.
ii. The Constitution does not explicitly mention any
right of privacy but the Court has recognized that a
guarantee of certain areas or zones of privacy does
exist under the Constitution.
1. Only personal rights that can be deemed
fundamental or implicit in the concept of
order liberty are included in this guarantee
of personal privacy.
2. This right of privacy, whether it be founded
in the Fourteenth Amendment’s concept of
personal liberty, as we fee it is, or in the
Ninth Amendment, is broad enough to
encompass a wona’s decision whether or
not to terminate her pregnancy.
 iii. Where certain fundamental rights are involved, the
Court has held that regulation limiting these rights
may be justified only by a compelling state interest
and that legislative enactments must e narrowly
drawn to express only the legitimate state interest
at stake.
iv. The constitution does not define person and the
Constitution’s use of the word is such that it has
application only postnatal.
1. The word person as used in the Fourteenth
Amendment does not include the unborn.
v. The State’s important and legitimate interest in the
health of the mother, the compelling point in the
light of present medical knowledge s at
approximately the end of the first trimester.
1. The Stat’s important and legitimate interest
in potential life, the compelling point is at
viability.
a. This is so because the fetus then
presumably has the capability of
meaningful life outside the mother’s
womb.
e. Concurrence:
i. In Eisenstadt we recognized the right of the
individual to be free from unwarranted
governmental intrusion into matters so
fundamentally affecting a person as the decision
whether to bear or beget a child.
1. That right necessarily includes the right of a
woman to decide whether or not to
terminate her pregnancy
f. Dissent
i. The test should be rationally related to the state
interest in order to take someone’s liberty away.
2. Notes
a. The Source of the Abortion Right.
i. .
3. Notes: From Roe to Casey: Doctrinal Evolution
a. Consent Requirements. In Planned Parenthood v.
Danforth, the Court invalidated a Missouri law requiring a
married woman seeking an abortion to provide the prior
written consent of her husband except where abortion
was necessary to preserve the life of the mother.
 i. A sate may condition abortion for an emancipated
minor upon either (1) the prior consent t of one
parent, or (2) a judicial bypass by which the minor
may obtain judicial permission to abort her fetus
upon a showing that either she is mature enough
to decide for herself or it would be in her best
interest to terminate her pregnancy.
ii. Bellotti v. Baird: invalidated a Massachusetts
requirement that a minor seeking an abortion must
obtain either the consent of both of her parents or
a court order.
iii. Planned Parenthood v. Ashcroft: the Court upheld
a parental consent requirement that included an
adequate judicial bypass.
b. Notice Requirement: Third-party notice requirements
condition abortion upon prior notice to either a married
woman’s husband or, in the case of a minor, one or both
of her parents.
i. Planned Parenthood v. Casey: struck down a
Pennsylvania spousal notice requirement, even
though it excepted cases when the woman
certified that (1) her husband was not the man
who had impregnated her, (2) her husband could
not be located (3) the pregnancy resulted from a
reported marital rape, or (4) she believed that
notice would cause her husband or someone else
to inflict bodily injury upon her.
c. Hospitalization Requirements: In Akron v. Akron Center for
Reproductive Health: the Court invalidated five provision
of an ordinance regulating abortions, including a
requirement that all abortions after the fist trimester be
performed in hospitals. This was not reasonably designed
to further the state interest in health regulation, because
the medical evidence showed that second-trimester
outpatient abortions could be safely performed.
4. Planned Parenthood of Southeastern Pennsylvania v. Casey
a. Facts: At issue are five provisions of the Pennsylvania
Abortion Control Act of 1982. The Act requires that a
woman seeking an abortion give her informed consent
prior to the abortion procedure, and specifies that she be
provided with certain information at least 24 hours before
the abortion is performed. For a minor to obtain an
abortion, the Act requires the informed consent of one of
her parents, but provides for a judicial bypass option if the
 minor does not wish to or cannot obtain a parent’s
consent. Another provision of the Act requires that, unless
certain exception apply, a married woman seeking an
abortion must sign a statement indicating that she has
notified her husband of her intended abortion. The Act
excepts compliance with these three requirements in the
event of a medical emergency. The Act also imposes
certain reporting requirements on facilities that provide
abortion services. Before any of these provision took
effect petitioners brought this suit seeking declaratory and
injunctive relief.
b. PH: The District Court held all the provisions at issue here
unconstitutional. The Court of Appeals upheld all of the
regulations except for the husband notification
requirement.
c. Issue:
d. Holding:
i. Roe v. Wade held three things:
1. First, is a recognition of the right of the
woman to choose to have an abortion
before viability and to obtain it without
undue interference from the State.
2. Second, is a confirmation of the State’s
power to restrict abortions after fetal
viability, if the law contains exceptions for
pregnancies which endanger woman’s life
or health.
3. Third, is the principle that the State has
legitimate interest from the outset of the
pregnancy in protecting the health of the
woman and the life of the fetus that may
become a child.
ii. Constitutional protection’s of a woman’s decision
to terminate her pregnancy derives from the Due
Process Clause.
1. The controlling word is liberty.
2. It is a promise of the Constitution that there
is a realm of personal liberty which the
government may not enter.
a. Neither the Bill of Rights no the
specific practices of States at the
time of the adoption of the
Fourteenth Amendment marks the
outer limits of the substantive
 sphere of liberty which the
Fourteenth Amendment protects.
iii. The matters involving the most intimate and
person choices a person may make in a lifetime,
choices central to personal dignity and autonomy,
are central to the liberty protected by the
Fourteenth Amendment.
1. At the heart of liberty is the right to define
one
2. S own concept of existence, of meaning, of
the universe, and of the mystery of human
life.
iv. Although Roe has engendered opposition, it has in
no sense proven unworkable, representing as it
does a simple limitation beyond which a state law
is unenforceable.
v. For two decades’ people have organized intimate
relationships and made choices that define their
views of themselves and their places in society in
reliance on the availability of abortion in the event
that contraception should fail.
vi. No evolution of legal principle has left Roe’s
doctrinal footings weaker than they were in 1973.
vii. Time has overtaken some of Roe’s factual
assumptions: advances in maternal health care
allow for abortions safe to the mother later in
pregnancy than was true in 1973, and advances in
neonatal care have advanced viability to a point
somewhat earlier.
viii. Justice O’Conner, Kennedy and Souter
1. The line should be drawn at viability, so that
before that time the woman has a right to
choose to terminate her pregnancy.
2. We adhere to this principle for two reasons
a. First is stare decisions
b. Second is that the concept of
viability is the time at which there is
a realistic possibility of maintaining
and nourishing a life outside the
womb, so that the independent
existence of the fetus can be the
object of state protection that now
overrides the rights of the woman.
3. Only where state regulation imposes an
undue burden on a woman’s ability to make
this decision does the power of the State
reach into the heart of the liberty protected
by the undue Process Clause.
a. A finding of an undue burden is a
shorthand for the conclusion that a
state regulation has the purpose or
effect of placing a substantial
obstacle in the path of a woman
seeking an abortion of a nonviable
fetus.
i. A statute with this purpose is
invalided because the means
chosen by the State to
further the interest in
potential life must be
calculated to inform the
woman’s free choice, not
hinder it.
ii. Cannot serve legitimate
ends.
iii. A law designed to further the
State’ interest in fetal life
which imposes an undue
burden on the woman’
decision before fetal viability
is not constitutional.
4. The waiting 24 hours is not an undue
burden.
a. Under the undue burden standard, a
State is permitted to enact
persuasive measures which favor
childbirth over abortion, even if
those measures do not further a
health interest.
5. The spousal notification requirement is thus
likely to prevent a significant number of
women from obtaining an abortion.
a. A husband has no enforceable right
to require a wife to advise him
before she exercises her personal
choices….A state may not give to a
man the kind of dominion over his
 wife that parents exercise over their
children.
b. Women do not lose their
constitutionally protected liberty
when they marry.
c. The Constitution protects all
individuals, male or female, married
or unmarried, from the abuse of
governmental power, even where
that power is employed for the
supposed benefit of a member of
the individual’s family.
6. State may requires parental consent
provision.
7. The collection of information with respect
to actual patients is a vital element of
medical research, and so it cannot be said
that the requirements serve no purpose
other than to make abortions more difficult.
e. Concurrence: Stevens
i. The fact that the State’s interest is legitimate does
not tell us when, if ever, that interest outweighs
the pregnant woman’s interest in personal liberty.
1. First, the State’s interest must be
secular…The state interest in potential
human life is…an indirect interest
supported by both humanitarian and
pragmatic concerns.
ii. The requirements that a physician or counselor
provide the woman with a range of materials
clearly designed to persuade her to choose not to
undergo the abortion are unconstitutional.
1. While the State is free to produce and
disseminate such material, the State may
not inject such information into the
woman’s deliberations just as she is
weighing such an important choice.
iii. There is no evidence that the mandated delay
benefits women or that it is necessary to enable
the physician to convey any relevant information to
the patient.
1. The mandatory delay thus appears to rest
on outmoded and unacceptable
 assumptions about the decision making
capacity of women.
iv. A burden may be undue either because the burden
is too severe or because it lacks a legitimate,
rational justification.
1. The 24-hour delay requirement fails both
parts of this test.
f. Concurrence: Blackmun
i. The Constitution requires that a State’s abortion
restrictions be subject to the strictest of judicial
scrutiny.
1. Limitations on the right of privacy are
permissible only if the governmental entity
imposing the restriction can demonstrate
that the limitation is both necessary and
narrowly tailored to serve a compelling
governmental interest.
g. Dissent: Rehnquist
i. Basically just believes it should be rational basis
instead of compelling state interest narrowly
tailored and absolutely necessary.
5. Notes
a. The Role of Precedent in Constitutional Cases.
6. Gonzales v. Carhart; Gonzales v. Planned Parenthood Federation
of America
a. Facts: In 2003 Congress passed the Partial-Birth Abortion
Ban Act at issue here. First, Congress found that a moral,
medical, and ethical consensus exists that the practice of
performing a partial-birth abortion is a gruesome and
inhumane procedure that is never medically necessary and
should be prohibited. Second, the Act provides that
anyone who is or affected interstate or foreign commerce,
knowingly performs a partial-birth abortion and thereby
kills a human fetus shall be fined or imprisoned not more
than 2 years, or both. The criminal prohibition does not
apply to a partial-birth abortion that is necessary to save
the life of a mother.
b. Issue: Whether the Act furthers the legitimate interest of
the Government in protecting the life of the fetus that may
become a child?
c. Holding:
d. Reasoning;
i. The Act would be unconstitutional 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.
ii. Where it has a rational basis to act, and it does not
impose an undue burden, the State may use its
regulatory power to bar certain procedures and
substitute others, all in furtherance of its legitimate
interest in regulating the medical profession in
order to promote respect for life, including life of
the unborn.
iii. The Act would be unconstitutional if it subjected
women to significant health risks.
e. Dissent:
i. The Court has consistently required that laws
regulating abortion, at any stage of pregnancy and
in all cases, safeguard a woman’s health.
1. The law saves not a single fetus from
destruction, for it target only a method of
performing abortion.
2. The Court upholds a law that, while doing
nothing to preserve fetal life, bars a woman
form choosing intact D&E although her
doctor reasonably believes that procedure
will best protect her.
ii. The Act , ad the Court’s defense of it, cannot be
understood as anything other than an effort to chip
away at a right declared again and again by this
Court – and with increasing comprehension of its
centrality to women’s lives.
7. Notes
a. The Role of Moral Concerns.
viii. The Right to Die
1. Cruzan v. Director, Missouri Department of Health
a. Facts: Nancy Cruzan, a 25-year-old woman, suffered
injuries in an auto accident that left her in “a persistent
vegetative state, exhibit some motor reflexes but no
indications off significant cognitive functions.” For seven
years she lay insensate in a hospital bed, curled into a fetal
position. She was kept alive only by means of a
gastronomy tube in her stomach, though which she
received necessary nutrition and fluid. When her parents
decided that the gastronomy tube should be removed and
Nancy be permitted to die, her medical caregivers were
not willing to comply without a court order to that effect.
The Cruzan’s obtained the order from a Missouri trial
 court, but on appeal the Missouri Supreme Court reversed
because it was not persuaded that, as require by Missouri
law, there was clear and convincing evidence that Nancy
had expressed her desire, when competition, to refuse
life-sustaining measures in her present condition.
b. Issue: Whether the Constitution prohibits Missouri from
choosing the rule of decision which it did.
c. Holding: The Washington’s assisted suicide ban does not
violate the Fourteenth Amendment, either on its face or as
applied to competent, terminally ill adults who wish to
hasten their deaths by obtaining medication prescribed by
their doctors.
d. Reasoning: Rehnquist
i. Informed consent generally encompass the right of
a competent individual to refuse medical
treatment.
ii. The principle that a competent person has a
constitutionally protected liberty interest in
refusing unwanted medical treatment may be
inferred from out prior decisions.
1. But determining that a person has a “liberty
interest” under the Due Process Clause
does not end the inquiry; whether
respondent’s constitutional rights have
been violated must be determined by
balancing his liberty interest against the
relevant state interests.
iii. The Court will assume that the Constitution would
grant a competent person a constitutionally
protected right to refuse life-saving hydration and
nutrition.
iv. Petitioner goes on to assert that an incompetent
person should possess the same right.
1. Such a right must be exercise for her, if at
all, by some sort of surrogate.
2. Here, Missouri has in effect recognized that
under certain circumstances a surrogate
may act for the patient in electing to have
hydration and nutrition withdrawn in such a
way as to cause death, but it has
established a procedural safeguard to
assure that the action of the surrogate
conforms to the wishes expressed by the
patient while competent.
 a. Missouri requires that the evidence
be clear and convincing (somewhere
between preponderance of the
evidence and beyond a reasonable
doubt.
v. The Constitution does not forbid the state from
putting a procedural safeguard to the right to die.
1. Missouri may legitimately seek to safeguard
the personal element of this choice through
the imposition of heightened evidentiary
requirements.
a. The Due Process Clause protects an
interest in life as well as an interest
in refusing life-sustaining medical
treatment.
2. A state may property decline to make
judgments about the qualify of life that a
particular individual may enjoy, and simply
assert an unqualified interest in the
preservation of human life to be weight
against the constitutionally protected
interest of the individual.
vi. A state may apply a clear and convincing evidence
standard in proceedings where a guardian seeks to
discontinue nutrition and hydration of a person
diagnosed to be in a persistent vegetative state.
vii. The substantial judgment of close family members
will not be enough to reflect the views of the
patient.
e. Concurrence: O’Conner
i. Agrees that there is a constitutionally protected
right to refuse treatment.
f. Concurrence:
i. No right written down in the Constitution.
g. Dissent: Brennan
i. The right to be free from medical attention without
consent, to determine what shall be done with
owns own body, is deeply rooted in this nation’s
traditions, as the majority acknowledges.
1. This is a matter of how such rights may be
exercised.
ii. The State has no legitimate general interest in
someone’s life, completely abstracted from the
interest of the person living that life, that could
 outweigh the person’s choice to avoid medical
treatment.
1. Missouri ahs an interest in providing Nancy
Cruzan, now incompetent, with as accurate
as possible a determination of how she
should exercise her rights under these
circumstances.
a. Until Nancy’s wishes have been
determined, the only state interest
that may be asserted is an interest
in safeguarding the accuracy of that
determination.
h. Dissent: Stevens
i. The Constitution requires the State to care for
Nancy Cruzan’s life in a way that gives appropriate
respect to her own best interests.
2. Washington v. Glucksberg
a. Facts: Washington law imposes felony punishment upon a
person who knowingly causes or aids another persons to
attempt suicide. At the same time, Washington’s Natural
Death Act, enacted in 1979, states that the withholding or
withdrawal of life-sustaining treatment at a patients
direction shall not, for any purpose, consist a suicide.
Respondents are Washington physicians who occasionally
treat terminally ill, suffering patients, and declare that
they would assist these patients in ending their lives if not
for Washington’s assisted-suicide ban. The District Court
declared the ban void, and the Court of Appeals, en banc,
concluded that the Constitution encompass a due process
liberty interest in controlling the time and manner of one’s
death and that the State’s assisted-suicide ban was
unconstitutional as applied to terminally ill competent
adults who wish to hasten their deaths with medication
prescribed by their physicians.
b. Issue: Whether Washington’s prohibition against “causing”
or “aiding” a suicide offends the Fourteenth Amendment
to the United States Constitution?
c. Holding:
i. History has made suicide illegal. Almost all states
make it a crime to assist in a suicide.
ii. Public concern and democratic action are sharply
focused on how best to protect dignity and
independent at the end of life, with the result that
many States now permit living wills, surrogate
 health-care decision making, and the withdrawal or
refusal of life-sustaining medical treatment.
iii. The established method of substantive due-process
analysis has two primary features:
1. First, we have regularly observed that the
Due Process Clause specially protects those
fundamental rights and liberties which are,
objectively “deeply rooted in this Nation’s
history and tradition,” and “implicit in the
concept of ordered liberty, “ such that
“neither liberty nor justice would exist if
they were sacrificed.
2. Second, we have required in substantive
due process cases a “careful description” of
the asserted fundamental liberty interest.
iv. The right to assist in a suicide is not enjoy the legal
protections of the personal decision to refuse
treatment.
1. The asserted right to assistance in
committing suicide is not a fundamental
liberty interest protected by the Due
Process Clause.
v. The Court is afraid that the right to assist in suicide
will cause involuntary euthanasia.
d. Concurrence: O’Connor
i. Believes that there is no right to commit suicide.
e. Concurrence: Stevens
i. There are situations in which an interest in
hastening death is entitled to constitutional
protection
1. The liberty interests at stake in a case like
this is an interest in deciding how, rather
than whether, a critical threshold shall be
crossed.
3. Notes
a. Vacco v. Quill
i. The Court rejected an equal protection challenge
to new York’s ban on assisted suicide that also
permitted patients to refuse life-saving medical
treatment. The Court of Appeals had concluded
that the laws provide differential treatment
because terminally ill patients on life support could
direct caregivers to withdraw life support and thus
 hasten death while terminally ill patients not on life
support could not hasten death by assisted suicide.
ix. Family Relationships
1. Moore v. City of East Cleveland
a. Facts: East Cleveland’s housing ordinance limits occupancy
of a dwelling unit to members of a single family, and
recognizes as a family only a few categories of related
individuals. Because her family, living together in her
home, fits none of those categories, appellant stands
convicted of a criminal offense. Appellant Mrs. Inez
Moore, lives in her East Cleveland home together with her
some, Dale Moore, Sr. , and her two grandsons, Dale, Jr.,
and John Moore, Jr. The two boys are first cousins rather
than brothers; were told that John came to live with his
grandmothers, uncle, and cousin after his mother’s death.
b. Issue: Whether the ordinance violates the Due Process
Clause of the Fourteenth Amendment.
c. Holding:
d. Reasoning: Powell
i. East Cleveland has chosen to regulate the
occupancy of its housing by slicing deeply into the
family itself.
1. When a city undertakes such intrusion
regulation of the family the usual judicial
deference to the legislature is
inappropriate.
a. While the family is not beyond
regulation, when the government
intrudes on choices concerning
family living arrangements, this
Court must examine carefully the
importance of the governmental
interests advanced and the extent to
which they are served by the
challenged regulation.
ii. The line of cases beginning with Meyer and Pierce
di don’t expressly consider the family relationship
presented here. There were immediately
concerned with freedom of choice with respect to
childbearing, or with the rights of parents to the
custody and companionship of their own children,
or with traditional parental authority in matters of
child rearing and education.
 1. But the Court cannot avoid applying the
force and rationale of these precedents to
the family choice involved in this case.
iii. Substantive due process has at times been a
treacherous field for this Court.
1. There are risks when the judicial branch
gives enhanced protection to certain
substantive liberties.
2. There is reason for concern lest the only
limits to such judicial intervention become
the predilections of those who happen at
the time to be Members of tis Court.
a. While that counsels caution and
restrains, it does not counsel
abandonment, nor does it require
what the city urges here: cutting off
any protection of family rights at the
first convenient, if arbitrary
boundary – the boundary of the
nuclear family.
3. Appropriate limits on substantive due
process come not from drawing arbitrary
lines but rather from careful “respect for
the teachings of history and solid
recognition of the basic values that underlie
our society.
a. The Constitution protects the
sanctity of the family precisely
because the institution of the family
is deeply rooted in this Nation’s
history and tradition.
i. The tradition of uncles,
aunts, cousins, and especially
grandparent sharing a
household along with
parents and children has
roots equally venerable and
equally deserving of
constitutional recognition.
4. Whether or not such a household is
established because of personal tragedy,
the choice of relatives in this degree of
kinship to live together may not lightly be
denied by the State.
 a. The Constitution prevents East
Cleveland from standardizing its
children – and its adults – by forcing
all to live in certain narrowly defined
family patterns.
iv. Concurrence: Stewart
1. Since this ordinance has not been shown to
have any “substantial relation to the public
health, safety, morals, or general welfare”
of the city of East Cleveland, and since it
cuts so deeply into a fundamental right
normally associated with the ownership of
residential property – that of an owner to
decide who may reside on this or her
property – East Cleveland’s unprecedented
ordinance constitutes a taking of property
without due process and without just
compensation.
v. Dissent: Stewart
1. This is not a concept of ordered liberty.
vi. Dissent: White
1. The content of the Due Process Clause is
nothing more than the accumulated
product of its judicial interpretation.
2. The present claim is hardly one of which it
could be said that neither liberty nor justice
would exist if it were sacrificed.
a. If the interest involved here is any
measure of what the States would
be forbidden to regulate, the courts
would be substantively weighing
and very likely invalidating a wide
range of measures that Congress
and state legislatures think
appropriate to respond to a
changing economic and social order.
2. Notes:
a. Who is Family?
i. Troxel v. Granville: Washington law permitted “any
person” to obtain visitation rights with a child
whenever such “visitation may sere the best
interest of the child.” A Washington court granted
the Troxel visitation rights with their
granddaughters over the objection of Granville, the
 girls’ mother, who was conceded to be a fit
custodial parent. A four-justice plurality of the
Supreme Court ruled that the Washington law, as
applied, violated Granville’s due process right to
make decisions concerning the care, custody, and
control of her daughters, because the law
permitted courts totally to disregard the desires of
a fit custodial parent regarding visitation.
b. Sources of Conflict.
i. When families re in conflict, there are three
separate entitles vying for primacy: parents,
children, and the state.
1. Parham v. J.R. – the Court upheld Georgia’s
practice of to requiring formal adversary
hearings become parent commit their
children to public mental institutions. The
Court balanced the individual, family and
social interest at stake to conclude that the
informal Georgia admissions procedure was
valid, gen the parents traditional interests
in the responsibly for the upbringing of
their child and ta longstanding societal
tradition of recognizing the family as a unit
with broad parental authority over minor
children.
2. Quilloin v. Walcott: Under Georgia law, if
the biological father of a child born outside
a marital relationship has not formally
acknowledged his paternity, only the
mother’s consent is required for adoption.
The Court stated that the relationship
between parent and child is constitutionally
protected and opined that Due Process
Clause would be offended if a State were to
attempt to force the breakup of a natural
family, over the objection of the parents
and their children, without some showing of
unfitness and for the solely reason that to
do so was though to be in the children’s
best interest.
c. Nonmarital Familyes.
i. Stanely v. Illinois: reveals that the constitutional
liberty interest of families is not confined to
families blessed by the marital sacrament. The
 Court invoked the fundamental rights branch of
equal protection (in which laws that impinge on
“fundamental rights” are subjected to strict
scrutiny) and stuck down the Illinois conclusive
presumption of parental unfitness on the part of
unwed fathers.
d. Scope of the Liberty Interest.
i. Pierce and Meyer recognized a protected liberty
interest of parents and children in access to private
schooling.
ii. In Pierce, the Court described this interest as “the
liberty of parents and guardians to direct the
upbringing and education of children under their
control.”
iii. Wisconsin v. Yoder: used the free exercise of
religion clause as well as due process to void a
compulsory’s education law as applied to the Old
Order Amis, whose religious beliefs forbid
education past the eight grade.
x. Consensual Sexual Choices
1. Bowers v. Hardwick: in which it upheld the validity of Georgia’s
criminal sodomy law, which provided that “a person commits the
offense of sodomy when he preforms or submits to any sexual act
involving the sex organs of one person and the mouth or anus of
another.” The Court concluded that Hardwick did not assert a
fundamental liberty interest. The Court then applied minimal
scrutiny because it was rationally related to Georgia’s legitimate
interest of declaring homosexual sodomy immoral and
unacceptable.
a. Dissent: “the basic reasons why certain rights associated
with the family have been accorded shelter under the Due
Process Clause.” We protect those rights because they
form so central a part of an individual’s life. “The concept
of privacy embodies the moral fact that a person belongs
to himself and not others nor to society as a whole.”
i. Stevens Dissent: A policy of selective application
must be supported by a neutral and legitimate
interest – something more substantial than a
habitual dislike for, or ignorance about, the
disfavored group.
2. Lawrence v. Texas
a. Facts: Houston police officers were dispatched to a private
residence in response to a reported weapons disturbance.
They entered an apartment where one of the petitioners,
 john Geddes Lawrence, resided. The right of the police to
enter dos not seem to have been questioned. The office
observed Lawrence and another man, Tyron Garner,
engaging in a sexual act. The two petitioners were
arrested, held in custody over night, and charged and
convicted. The compliant described their crime as deviate
sexual intercourse, namely anal sex, with a member of the
same sex. The applicable state law provides: “A person
commits an offense if he engages in deviate sexual
intercourse with another individual of the same sex. The
statues define “deviate sexual intercourse” as “any contact
between any part of the genitals of one person and the
mouth or anus of another person; or the penetration of
the genitals or the anus of another person with an object.”
The petitioners were adults at the time of the alleged
offense. Their conduct was in private and consensual.
b. Issue: The validity of a Texas statue making it a crime for
two persons of the same sex to engage in certain intimate
sexual conduct.
c. Holding:
d. Reasoning:
i. The statues here purport to do no more than
prohibit a particular sexual act.
1. Their penalties and purposes, though, have
more far-reaching consequences, touching
upon the most private human conduct,
sexual behavior, and in the most private of
places, the home.
2. The statues do seek to control a personal
relationship that, whether or not entitled to
formal recognition in the law, is within the
liberty of person to choose without being
punished as criminals.
ii. When sexuality finds overt expression in intimate
conduct with another person, the conduct can be
but one element in a personal bond that is more
enduring.
1. The liberty protected by the Constitution
allows homosexual person the right to
make this choice.
iii. We need not reach a definitive historical
judgment, but there is no longstanding history in
this country of laws directed at homosexual
conduct as a distinct manner.
 1. The history of sodomy was directed at
heterosexual couples as well as
homosexual.
2. It was not until the 1970s that any State
singled out same-sex relations for criminal
prosecution, and only nine Stats have done
so.
3. Over the course of the last decades, States
with same-sex prohibitions have moved
toward abolishing them.
a. In summary, the historical grounds
relied upon in Bowers at the very
least, are overstated.
iv. The issue is whether he majority may sue the
power of the State to enforce these views on the
whole society though operation of the criminal law.
1. Our obligation is to define the liberty of all,
not to mandate our own moral code.
2. In 1955 the American Law Institute
promulgated the Model Penal Code and
made clear that it did not recommend or
provide for “criminal penalties for
consensual sexual relations conducted in
private.”
v. The deficiencies in Bowers became even more
apparent in the years following its announcement.
1. The 25 States with laws prohibiting the
relevant conduct referenced in the Bowers
decision are reduced not to 13, or which 4
enforce their laws only against homosexual
conduct.
2. In those States where sodomy is still
proscribed, whether for same-sex or
heterosexual conduct, there is a pattern of
nonenforcement with respect to consenting
adults acting in private.
a. The central holding of Bowers has
been brought in question by this
case, and it should be addressed.
b. It continuance as precedent
demeans the lives of homosexual
persons.
vi. The petitioners are entitled to respect for their
private lives.
 1. The State cannot demeans their existence
or control their destiny by making their
private sexual conduct a crime.
2. Their right to liberty under the Due Process
Clause lives them the full right to engage in
their conduct without intervention of the
government.
3. It is a promise of the Constitution that there
is a realm of personal liberty which the
government may not enter.
4. The Texas statue furthers no legitimate
state interest which can justify its intrusion
into the personal and private life of the
individual.
e. Concurrence: O’Connor
i. The Texas’s statute banning same-sex sodomy
unconstitutional, but because it violates the Equal
Protection Clause.
1. The Texas statute makes homosexuals
unequal in the eyes of the law by making
particular conduct subject to criminal
sanction.
ii. This case raises a different issue than Bowers:
whether, under the Equal Protection Clause, moral
disapproval is a legitimate state interest to justify
by itself a statute that bans homosexual sodomy,
but not heterosexual sodomy.
1. It is not.
2. Moral 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.
3. The Court has never held that moral
disapproval, without any other asserted
state interest, is a sufficient rationale under
the Equal Protection Clause to justify a law
that discriminates among group of persons.
iii. Moral disapproval of a group cannot be a
legitimate governmental interest under the Equal
Protection Clause because legal classifications must
not be drawn for the purpose of disadvantaging the
group burdened by the law.
1. A law branding one class of persons as
criminal solely based on the State’s moral
 disapproval of that class…runs contrary to
the values of the Constitution and the Equal
Protection Clause, under any standard of
review.
f. Dissent: Scalia
i. .
3. Notes
a. Methodology: Due Process:
xi. Marriage
1. Loving v. Virginia: Virginia made interracial marriage a crime. The
Lovings, a married couple consisting of a black woman and a
white man, were convicted under the law. The Court upheld both
their equal protection challenged and their substantive due
process claim. Chief Justice Warrant wrote for the Court:
a. The statue deprives the Lovings of liberty without due
process of law. The freedom to marry has long been
recognized as one of the vital personal rights essential to
the orderly purist of happiness by free men. Marriage is
one of the basic civil rights of man, fundamental to our
very existence and survival. To deny this fundamental
freedom on so unsupportable a basis as race is surely to
deprive all the State’s citizens of liberty without due
process of law. Under our Constitution, the freedom to
marry , or not marry, a person of another race resides with
the individual and cannot be infringed by the State
i. Because Virginia’s interest in barring interracial
marriage – preserving white supremacy – was
illegitimate, the Court did not articulate precisely
what standard of review might apply to more
legitimate infringements upon marriage.
2. Zablocki v. Redhail: Wisconsin law prohibited marriage by anyone
not in compliance with valid court-ordered child support
obligations. The Court invalidated this law under the fundamental
rights prong of equal protection although Justice Steward,
concurring, called it “no more than substantive due process by
another name.”
a. Justice Marshall: Our past decision make clear that the
right to marry is of fundamental importance. Because the
classification at issue here significantly interferes with the
exercise of that right, we believe that “critical
examination” of the states interest advanced in support of
the classification is required…But not every state
regulation which relates in any way to marriage must be
subjected to rigorous scrutiny.
3. Turner v. Safly: The Court invalidated a prison regulation that
permitted inmates to marry only when the prison warden found
compelling reasons for marriage. The regulation was a substantial
interference with the right to marry and, although the state had
legitimate security reasons to restrict inmate marriage, the
regulation was far more incursive than necessary.
4. Obergefell v. Hodges
a. Facts: Same-sex couple brought action alleging that voter –
approved Michigan Marriage Amendment, which
prohibited same-sex marriage, violated Equal Protection
and Due Process Clauses. Same-sex couples married in
jurisdictions that provide for such marriages brought
actions alleging that Ohio’s ban on same-sex marriages
violated Fourteenth Amendment. Same-sex spouses, who
entered legal same-sex marriages in Maryland and
Delaware, and Ohio funeral director sued Ohio officials
responsible for death certificates that denied recognition
of spouses’ same-sex legal marriages after death of their
partners, seeking declaratory judgment and permanent
injunction. Same-sex couples validity married outside
Kentucky brought § 1983 actions challenging
constitutionally of Kentucky’s marriage licensing law and
denial of recognition for valid same-sex marriages. Same-
sex couples who were legally married in other states
before moving to Tennessee brought action challenging
constitutionality of Tennessee’s laws that voided and
rendered unenforceable in Tennessee any marriage
prohibited in state.
b. Issue:
c. Holding: Same-sex couples may exercise the fundamental
right to marry.
d. Reasoning:
i. The Constitution promises liberty to al within its
reach, a liberty that includes certain specific rights
that allow persons, within a lawful realm, to define
and express their identity.
ii. Under the Due Process Clause of the Fourteenth
Amendment no State shall “deprive any person of
life, liberty, or property, without due process of
law.”
1. The fundamental liberties protected by this
clause extend to certain personal choices
central to individual dignity and autonomy,
including intimate choices that define
 personal identity and beliefs…The
identification and protection of
fundamental rights is an enduring part of
the judicial duty to interpret the
Constitution.
iii. The Court must use reasoned judgment to find
fundamental rights.
1. History and tradition guide and discipline
this inquiry but do not set its outer
boundaries…The Court has long held the
right to marry is protected by the
Constitution.
2. It cannot be denied that this Court’s cases
describing the right to marry presumed a
relationship involving opposite-sex
partners.
iv. The four principles and traditions to be discussed
demonstrate that the reasonable marriage is
fundamental under the Constitution apply with
equal force to same-sex couples.
1. A first premise of the Court’s relevant
precedents is that the right to personal
choice regarding marriage is inherent in the
concept of individual autonomy…choices
about marriage shape an individual’s
destiny…The nature of marriage is that,
though its enduring bond, two personal
together can find other freedoms, such as
expression, intimacy, and spirituality.
2. A second principle in this Court’s
jurisprudent is that the right to marry is
fundamental because it supports a two-
person union unlike any other in its
importance to the committed individuals.
3. A third bass for protecting the right to
marry is that it safeguards children and
families and thus draws meaning from
related rights of childrearing, procreation,
and education.
4. Fourth this Court’s cases the Nations’
traditions make clear that marriage is a
keystone of our social order.
a. By virtue of the exclusion from the
institution, same-sex couples are
 denied the constellation of benefits
that the States have linked to
marriage.
v. Glucksberg did insist that liberty under the Due
Process Clause must be defined in a most
circumscribed manner, with central reference to
specific historical practices.
1. Yet it is inconsistent with the approach this
Court has used in discussing other
fundamental rights, including marriage and
intimacy.
vi. The right to marry is fundamental as a matter of
history and tradition, but rights come not from
ancient sources alone. The rise, too, from a better
informed understanding of how constitutional
imperatives define a liberty that remains urgent in
our own area.
1. Under the Constitution, same-sex couples
seek in marriage the same legal treatment
as opposite-sex couples, and it would
disparage their choices and diminish their
personhood to deny them this right.
vii. The right of same-sex couples to marry that is part
of the liberty promised by the Fourteenth
Amendment is derived, too, from that
Amendment’s guarantee of the equal protection of
the laws.
1. The Due Process Clauses and the Equal
Protection Clause are connected in a
profound way, though they set fourth
independent principles.
2. Rights implicit in liberty and rights secured
by equal protection may rest on different
precepts and are not always coextensive,
yet in some instances each may be
instructive as to the meaning and breach of
the other.
3. It is now clear that the challenged laws
burden the liberty of same-sex couples, and
it must be furthered acknowledged that
they abridge central precepts of equality.
viii. The imposition of this disability on gays and
lesbians serves to disrespect and subordinate
them. And the Equal Protection Clause, like the
 Due Process Clause, prohibits this unjustified
infringement of the fundamental right to marry.
These considerations lead to the conclusion that
the right to marry is a fundamental right inherent
in the liberty of the person, and under the Due
Process and Equal Protection Clauses of the
Fourteenth Amendment couples of the same-sex
may not be deprived of that right and that liberty.
e. Dissent: Roberts
i. .
ii. .
iii. .
iv. .
v. .
f. Dissent: Scalia
i. .
ii. .
iii. .
iv. .
v. .
xii. Other Asserted Privacy or autonomy Interests
1. Personal Appearance. In Kelly v. Johnson, the Court upheld police
regulation that controlled hair length, style, mustaches, sideburns,
and prohibited beards and goatees save for medical reasons. The
Court assumed that the citizenry at large has some sort of liberty
interest in matters of personal appearance, but concluded that
regulation of the personal appearance of policemen posed no
substantial interference with any fundamental liberty interest
protected by the due process clause.
2. Personal anonymity: freedom from data collection. Whalen v.
Roe. The Court rejected such a claim for the right of privacy from
government accumulation of personal data about individuals. The
Court stated privacy involves either an interest in avoiding
disclosure of personal matter or an interest in making certain
important decision affecting one’s life.
xiii. The Methodology of Substantive Due Process: A Debate
1. McDonald v. City of Chicago
a. Facts:
b. Issue:
c. Holding: The Court held that the Second Amendment right
to possess a firearm for purposes of self-defense was
constitutionally fundamental and made application to the
states though the Fourteenth Amendment.
d. Dissent: Stevens
 i. This is a substantive due process case. The first,
and most basic, principle is that the rights
protected by the Due Process are not merely
procedural in nature…Substance and procedure are
often deeply entwined.
ii. The second principle is that substantive due
process is fundamentally a matter of perusal liberty
whether an asserted substantive due process
interest is explicitly named in one of the first eight
Amendments to the Constitution or is not
mentioned, the underlying inquiry is the same: We
must as whether the interest is comprised within
the term liberty.
iii. The Court must ask whether the allegedly unlawful
practice violates values implicit in the concept of
ordered liberty.
1. A rigid historical methodology is unfaithful
to the Constitution’s command.
iv. Only certain types of especially significant personal
interest may qualify for especially heightened
protection…Government action that shocks the
conscience, pointlessly infringes settled
expectations, trespasses into sensitive private
realms or life choices without adequate
justification, perpetrates gross injustice, or simply
lacks a rational basis will always be vulnerable to
judicial invalidation.
v. Another key constraint on substantive due process
analysis is respect for the democratic process.
1. If a particular liberty interest is already
being given careful consideration in , and
subjected to ongoing calibration by , the
States, judicial enforcement may not be
appropriate.
vi. First, firearms have a fundamentally ambivalent
relationship to liberty.
1. Your interest in keeping and bearing a
certain firearm may diminish may interest
in being and feeling safe from armed
violence.
2. While granting you the right to own a
handgu might make you safer on any given
day – assuming the handgun’s marginal
contribution to self-defense outweighs its
 marginal contribution to the risk of
accident, suicide, and criminal mischief – it
may make you and the community you lie in
less safe overall, owing to the increased
number of handguns in circulation.
a. It is at least reasonable for a
democratically elected legislature to
take such concerns into account in
considering what sorts of
regulations would best serve the
public welfare.
vii. Second, the right to possess a firearm of one’s
choosing is different in kind from the liberty
interest we have recognized under the Due Process
Clause…The ability to own a handgun, or any
particular type of firearm, is not critical to leading a
life of autonomy, dignity, or political equality.
1. The liberty interest asserted here is also
dissimilar from those was have recognized
in its capacity to undermine the security of
others.
viii. Third, the experience of other advanced
democracies, including those that share our British
heritage, undercuts the notion that an expansive
right to keep and bear arms is intrinsic to ordered
liberty.
ix. It makes little sense to give history dispositive
weight in every case.
1. And it makes especially little sense to
answer questions like whether the right to
bar arms is fundamental by focusing only on
the past, given that both the practical
significance and the public understandings
of such a right often change as society
changes.
e. Concurrence: Scalia
i. .
b. Procedural Due Process
i. Defining the Interests Protected by Due Process
1. Property
a. As the social welfare state grew larger, making the social
and economic significance of government employment
and benefits ever more important, the benefits as
privileges view came under attack.
b. Goldberg v. Kelly: The Court agreed with Reich and
formulated a doctrine that held, at its high-water mark,
that any government benefit that was extremely
important to its recipient was a form of liberty or property
to which due process attached.
i. The Goldberg Court held that a welfare recipient
was entitled to an evidentiary hearing before the
termination of benefits because the benefits are a
matter of statutory entitlement for person
qualified to received them, and their continued
receipt was of the utmost importance to the
affected individual. Eliminating of the welfare
benefits would deprive the claimant of he very
means to live.
ii. The Goldberg principle was quickly extended to
apply to claims made by government employees,
licensees, students, prisoner, and debtors, to name
a few.
c. Board of Regents v. Roth
i. The Court stated to determine whether due
process requirements apply in the first place, the
court must look not to the weight but to the nature
of the interest at stake. One must have more than
a unilateral expectation of it. They must have a
legitimate claim of entitlement.
d. Cleveland Board of Education v. Loudermill
i. Facts: In 1979 the Cleveland Board of Education
hired respondent james Loudermill as a security
guard. On his job application, Loudermill stated
that he had never ben convicted of a felony.
Eleven months later, as part of a routine
examination of his reemployment records, the
Board discovered that in fat Loudermill had been
convicted of grand larceny in 1968. By letter the
Board’s Business Manager informed Loudermill
that he had been dismissed because of his
dishonesty in filling gout the employment
application. Loudermill was not afforded an
opportunity to respond to the charge of dishonest
or to challenge his dismissal. Under Ohio la,
Loudermill could be terminated only for cause and
could obtain administrative review if discharged.
Loudermill pursued his administrative remedies,
arguing that he had though that his 1968 larceny
 conviction was for a misdemeanor rather than a
felony. In federal court Loudermill alleged that the
administrative review provided was
unconstitutional on its face because it did not
proved the employee an opportunity to respond to
the charges against him prior to removal. The
District Court dismissed the complain for failure to
state a claim on which relief could be granted. It
held that because the very statute that created the
property right in continued employment also
specified the procedures for discharge, and
because those procedures were followed,
Loudermill was, by definition, afforded all the
process due.
ii. Issue: What pretermination process must be
accorded a public employee who can be discharged
only for cause?
iii. Holding:
iv. Reasoning:
1. Property interest are not created by the
Constitution, they are created and their
dimensions are defined by existing rules or
understanding that stem from an
independent source such as state law.
2. The Due Process Clause provides that
certain substantive rights – life, liberty,
property cannot be deprived except
pursuant to constitutionally adequate
procedures.
a. Property cannot be defined by the
procedures provided for its
deprivation any more than can life
or liberty.
b. The right to due process is
conferred, not by legislative grace,
but by constitutional guarantee.
3. Once it is determined that the Due Process
Clause applies, the question remains what
process is due.
a. The answer to the question is not to
be found in Ohio statute.
v. Dissent:
1. We ought to recognize the totality of the
State’s definition of the property right in
 question, and not merely seize upon one of
several paragraphs in a unitary statute to
proclaim that in that paragraph the State
has inexorably conferred upon a civil service
employee something which it is powerless
under the Constitution to qualify in the next
paragraph of the statute.
e. Notes
i. Property as a Statutory Entitlement. Property is
defined by both statutory and common law
sources. Under the Roth/Loudermill approach such
statutory entitlements are property to which the
protections of due process attach.
1. The essence of due process is notice and
opportunity to be heard. The value of these
right inheres mostly in the possibility of
reducing mistaken decisions and, to a lesser
extent, in increasing the involvement of
affected persons in the decisions.
ii. Wholly Discretionary Entitlements. In Castle Rock v.
Gonzalez, the Supreme Court ruled that a benefit is
not protected entitlement if government officials
may grant or deny it in their discretion.
2. Liberty
a. Government actions that alter one’s legal status under
positive law implicate liberty interest, but some
government actions that may not do so are nevertheless
such massive invasions of liberty that due process
attaches.
b. Paul v. Davis – The Court rejected Davis’s civil right claim
that his reputation had been injured. Acceptance of
Davis’s argument would result in every legal cognizable
injury which may have been inflicted by a state official
acting under color of law establishing a violation of the
Fourteenth Amendment. Thus, reputation alone, apart
from some more tangible interest such as employment, is
neither liberty nor property by itself sufficient to invoke
the procedural protection of the Due Process Clause.
c. Mechum v. Fano – The Court ruled that no liberty interest
was at stake when a state decided to shift a prisoner from
a medium-security prison to a maximum-security prison.
ii. Determining the Process Due
1. Mathews v. Eldridge
a. Facts: Since 1968 Eldridge had received Social Security
disability benefits for chronic anxiety and back strain. The
disability statute placed a continuing burden on the
beneficiary to prove his eligibility for disability benefits and
a continuing obligation non the government agency to
investigate eligibility. In 1972, the agency sent Eldridge a
questionnaire concerning his conduction. Based on his
answer, and on information provided by Eldridge’s
physician and psychiatric consultant, the agency
tentatively concluded that Eldridge’s disability had ceased.
Eldridge was informed of this decision and the reasons for
it by letter and invited to provide a written response and
supply new evidence. He di so, disputing some of the
agency’s conclusion. The government nevertheless made
a final determination that Eldridge’s disability had ceased
and terminated his benefits. Although he was entitled to
seek reconsideration and to have an evidentiary hearing to
contest the validity of the benefit termination, Eldridge
sued, contending that the pre-termination procedures
were inadequate under the due process clause.
b. Issue: What process is due prior to the initial termination
of benefits, pending review.
c. Holding:
d. Reasoning: Powell
i. Due process is not a technical conception with a
fixed content unrelated to time, place and
circumstances but is flexible and calls for such
procedural protections as the particular situation
demand.
ii. Identification of the specific dictates of due process
generally requires consideration of three different
factors: first, the private interest that will e
affected by the official action; second, the risk of
an erroneous deprivation of such interest though
the procedures used, and the probable value, if any
, of additional or substitute procedural safeguards;
and finally, the Government’s interest , including
the function involved and the fiscal and
administrative burdens that the additional or
substitute procedural requirement would entail.
1. Due process requires an evidentiary hearing
prior to termination.
2. The degree of potential deprivation that
may be created by a particular decision is a
 factor to be considered in assessing the
validity of any administrative decision-
making process.
iii. An additional factor to be considered here is the
fairness and reliability of the existing pre-
termination procedures and the probable cause, if
any, of additional procedural safeguards.
1. Procedural due process rules are shaped by
the risk of error inherent in the truth finding
process as applied to the generality of
cases, not the rare exceptions.
a. The potential value of an evidentiary
hearing, or even oral presentation to
the decision maker, is substantially
less in this contest than Goldberg
iv. A further safeguard against mistake is the policy of
allowing the disability recipient’s representative
full access to all information relied upon y the state
agency.
1. The recipient is allowed to produce new
evidence to challenge the decision of
termination to challenged the accuracy of
information in the file as well as the
correctness of the agency’s tentative
conclusions.
v. Last factor is public interest.
1. The most visible burden would be the
incremental costs resulting from the
increased number of hearings and the
expense of providing benefits to ineligible
recipient pending decision.
vi. In assessing what process is due in this case,
substantial weight must be given to the good faith
judgments of the individuals charged by Congress
with the administration of social welfare programs
that the procedures they have provided assure fair
consideration of the entitlement claims of
individuals.
e. Notes
i. Notice and Hearing. In some contexts, such as
criminal charges or assertions of substantive civil
liability, a formal trial is required. I others a
semiformal evidentiary hearing may be required.
 1. Gross v. Lopez the Court held that an
informal conversation between a public
school administrator and a student prior to
the student’s suspension from school for
ten days was enough to satisfy due process,
so long as the conversation included the
charges, a summary of the evidence
supporting the charges, and a chance for
the student to tell his or her version of the
events.
2. Wilkinson v. Austin, the Court applied
Mathews to uphold Ohio’s procedures for
determining which prison inmates should
be confined in its supermax security prison.
The court concluded that the private
interest at stake here, while more than
minimal, must be evaluated within the
context of the prison system and its
attendant curtailment of liberties.
ii. Pre – or Post-Deprivation Hearing? Although due
process generally requires the government to
provide notice and opportunity to be heard before
depriving someone of property or liberty,
sometimes due process is satisfied by a post-
depravation hearing or other remedy. When
governments deprive person of property to
prevent immediate public harm and provide
adequate post-depravation remedies, pre-
depravation hearing is not necessarily required.
iii. Megan’s Laws: Registration and Public Disclosure of
the Whereabouts of Sex Offenders. In Connecticut
Department of Public Safety v. Doe, the Court
upheld a Connecticut law that required convicted
sex offenders to register and disclose publicly their
whereabouts after release from custody. The
Court reasoned that due process did not require a
hearing prior to registration and disclosure because
those obligations were imposed as a result of
conviction, and the criminal trial resulting in
conviction afforded ample due process.
iv. Detention of Citizens as Enemy Combatants. In
Hamdi v. Rumsfeld, the Court concluded that an
American citizen held as an enemy combatant was
 entitled to due process in his challenge of that
status.
III. Chapter VIII: Equal Protection
a. Overview
i. The Fourteenth Amendment provides that no state may “deny to any
person within its jurisdiction the equal protection of the laws.”
1. Equal protection requires us not only to examine the relationship
between government objectives and classifications but also to
formulate a theory as to why some objectives are presumptively
illegitimate and others are presumptively valid.
ii. The equal protection clause applies to governments, not private actions.
1. The Fourteenth Amendment explicitly obligates states to provide
equal protection of the laws.
iii. Levels of Judicial Scrutiny
1. At a minimum, a legislative classification must be rationally
related to a legitimate government objective.
a. This minimal review or rational basis scrutiny might be
thought of as the default level of equal protection review.
b. The plaintiff challenging the validity of ta legislative
classification must prove either r(1) that the classification
does not rationally advance a legitimate state objective (2)
that, no matter how well the classification serves the
objective, the objective is not legitimate.
2. Some classifications are presumptively void, either because they
employ suspect criteria or because they impinge substantially on
a constitutionally fundamental right.
a. When such a classification is encountered, the burden is
on the government to prove that the classification is
necessary (narrowly tailored) to accomplish a compelling
state interest.
i. This is strict scrutiny.
b. When classifications are quasi-suspect or somewhat
suspect.
i. The government has the burden of proving that
these classifications are substantially related to an
important state interest.
ii. The government’s objective need not be
compelling, but it must be more than merely
legitimate.
iii. The classification need not be necessary, or
narrowly tailored, to the objective, but it must be
more closely related to the objective than merely
rational.
 1. This standard requires an explanation of
why these classifications, if sufficiently
suspicion to merits a presumption of
invalidity, are not subjected to strict
scrutiny.
iv. Classifications and Objectives
1. A law is enacted to achieve a legislative objective, but the
classification employed by the law may not perfectly achieve that
objective.
2. A statutory classification necessarily divides people into two
classes.
a. There is another division of people that is not necessarily
accomplished by the statutory classification.
b. A statutory classification may include more people or
things than necessary to achieve the objective perfectly,
and thus be over-inclusive.
c. A statutory classification may also include fewer people or
things than necessary to achieve the objective perfectly. If
so, the statute is under-inclusive.
b. Minimal Scrutiny: The Default Level of Review
i. Means: What is Not Rational?
1. Railway Express Agency, Inc. v. New York
a. Facts: A New York City traffic regulation provides: “No
person shall operate, or cause to be operated, in or upon
any street an advertising vehicle; provided that nothing
herein contained shall prevent the putting of business
notices upon business delivery vehicles, so long as such
vehicles are engaged in the usual business or regular work
of the owner and not used merely or mainly for
advertising. Appellant is engaged in a nation-wide express
business. It operates about 1,900 trucks in NYC and sells
the space on the exterior sides of these trucks for
advertising. That advertising is for the most part
unconnected with its owner business. It was convicted
and fined. The conviction was upheld by New York’s Court
of Appeals. It is argued that unequal treatment on the
basis of such a distinction is not justified by the aim and
purpose of the regulation. It is therefore contended that
the classification which the regulation makes has not
relation to the traffic problem since a violation turns not
on what kinds of advertisements are carried on trucks but
on whose trucks they are carried.
b. Issue:
c. Holding: A state law that is substantially under inclusive
does not necessarily violate the Equal Protection Clause
because a state may relationally decide to address a public
problem in phases.
d. Reasoning: Douglas
i. The advertising displays that are exempt may have
less incidence on traffic than those of appellants.
1. We cannot say that that judgment is no an
allowable one.
a. The classification has relation to the
purpose for which it is made and
does not contain the kinds of
discrimination against which the
Equal Protection Clause affords
protection.
b. The fact that NYC sees fit to
eliminate from traffic this kinds of
distraction but des not touch what
may be even greater ones in a
different category, such as vivid
displays on Times Square, is
immaterial.
ii. It is no requirement of equal protection that all
evils of the same genus be eradicated or none at
all.
e. Concurrence: Jackson
i. Invocation of the equal protection clause does not
disable any governmental body from dealing with
the subject at hand.
1. It merely means that the prohibition or
regulation must have a broader impact.
2. There is no more effective practical
guaranty against arbitrary and
unreasonable government that to require
that the principles of law which officials
would impose upon a minority must be
imposed generally.
ii. If the City of New York should assume that display
of any advertising on vehicles distracts the
attention of person using he highways and
increases the dangers of tis traffic, I should think it
fully within its constitutional powers to forbid it all.
iii. The City argues that, while its regulation does not
eliminate vehicular advertising, it does eliminate
 such advertising for hire and to this extent cuts
down the hazard sought to be controlled.
1. The difference between carrying on any
business for hire and engaging in the same
activity on one’s own is invoked here to
sustain a discrimination in a problem in
which the two classes present identical
dangers.
2. Notes:
a. Williamson v. Lee Optical Co. – Oklahoma barred opticians
from making eyeglasses without a prescription from either
an ophthalmologist or an optometrist.
i. The Supreme Court reversed a federal trial judge’s
ruling that the ban was not “reasonably and
rationally related to health and welfare.” The
Court, in an opinion by Justice Douglass, upheld the
law against both due process and equal protection
challenges.
1. “Evils in the same field may be of different
dimensions and proportion, requiring
different remedies. Or so the legislature
may think. Or the reform may take one
step at a time, addressing itself to the phase
of the problem which seems most acute to
the legislative mind. The legislature may
select one phase of one field and apply a
remedy there, neglecting the others. The
prohibition of equal protection goes no
further than the invidious discrimination.
We cannot say that that point has been
reached here. For all this record shows, the
ready-to-wear branch of this business may
not loom large in Oklahoma or may present
problems of regulation distinct from the
other branch.
ii. So long as there was an evil at hand for correction,
however modest it may be, the law must be upheld
if it might be though that the legislation was a
rational way to correct it. [A state may regulate a
business if its legislature determines there is a
particular health and safety problem at hand and
that the regulation in question is a rational way to
correct the problem.}
 1. In essence, the Court ruled that if there was
any conceivable basis to surmise that a law
was rationally related to a legitimate state
goal, the law would be upheld.
b. The Problems of Under-inclusion
c. The Problem of Over-inclusion. Over inclusive
classifications burden more people than necessary to
accomplish the classification’s legitimate objective.
d. Determining Legislative Objectives Under Minimal
Scrutiny. There are several ways courts can determine
legislative objectives. Courts can rely on the legislature’s
stated purpose – if there is one – or on the actual purpose,
or on any conceivable purpose, which includes anything
that might have been a legislative purpose.
3. United States Railroad Retirement Board v. Fritz
a. Facts: Until 1974, retirees who had worked for both a
railroad and a non-railroad employer received retirement
benefits under Social Security and a separate railroad
retirement plan. In 1974, Congress eliminated these dual
retirement benefits for some, but not all, railroad worker.
The 1974 legislation denied dual benefits to nonretired
persons vested in both retirement plans unless they either
(1) had worked in or had a “current connection” with the
railroad industry in 1974, or 92) had completed 25 years of
railroad service by 1974. Nonretired people not currently
working in the railroad industry but with 10 to 25 years of
past service and presently vested retirement benefits were
stripped of their railroad retirement pension benefits,
while current railroad workers with vested benefits and
nonretired workers working elsewhere but with 25 years
of railroad service received their benefits. The benefit
losers connected that the statutory distinction violated
equal protection.
b. PH: The District Court found that a differentiation based
solely on whether an employee was active in the railroad
business as of 1974 was not rationally related to the
congressional purposes of insuring the solvency of the
railroad retirement system and protecting vested benefits.
c. Issue: The initial issue presented by this case is the
appropriate standard of judicial review to be applied when
social and economic legislation enacted by Congress is
challenged as being violate of equal protection.
d. Holding: Under rational basis review, Congress’s actual
purpose behind a law is irrelevant and the law must be
 upheld as not violating the Fifth Amendment if any
statement of fact may reasonably be conceived to justify
its discrimination.
e. Reasoning:
i. Royster Guano Co. v. Virginia – the Court said that
for a classification to be valid under equal
protection it must rest upon some ground of
difference having a fair and substantial relation to
the object of the legislation, but in recent cases
involving social and economic benefits the Court
has consistently refused to invalidate on equal
protection grounds legislation which it simply
deemed unwise or unartfully drawn.
ii. The plain language of the statute marks the
beginning and end of our inquiry…Because
Congress could have eliminated windfall benefits
for all classes of employees, it is not
constitutionally impermissible for Congress to have
drawn lines between groups of employees for the
purpose of phasing out those benefits.
1. The only remaining question is whether
Congress achieved its purpose in a patently
arbitrary or irrational way.
iii. Congress could properly conclude that person who
had actually acquired statutory entitlement to
windfall benefits while still employed in the
railroad industry had a greater equitable claim to
those benefits than the members of appellee’s
class who were no longer in railroad employment
when they became eligible for dual benefits.
1. Congress could assume that those who had
a current connection with the railroad
industry when the Act was passed in 1974,
or who returned to the industry before
their retirement, were more likely than
those who had left eh industry prior to 1974
and who never returned, to be among the
class of persons who pursue careers in the
railroad industry, the class for whom the
Railroad Retirement Act was designed.
iv. If the test were applied literally to ever member of
any legislature that ever voted on a law, there
would be very few laws which would survive it.
f. Concurrence: Stevens
 i. When Congress deprives a small class of persons of
vested rights that are protected for others who are
in a similar though not identical position, I believe
the Constitution requires something more than
merely a conceivable or a plausible explanation for
the unequal treatment.
ii. Actual purpose is sometimes unknown…I there fore
believe that we must discover a correlation
between the classification and either the actual
purpose of the statute or a legitimate purpose that
we may reasonably presume to have motivated an
impractical legislature.
1. If the adverse impact on the disfavored
class ins an apparent aim of the legislature,
its impartiality would be suspect.
iii. Congress’s broad objective was to protect the
solvency of the entire railroad retirement program.
1. Two purposes that conflicted somewhat
with this board objective were the purposes
of preserving those benefits that had
already vested and of increasing the level of
payments to beneficiaries whose rights
were not otherwise to be changed.
iv. Any distinction it chose within the class of vested
beneficiaries would involve a difference of degree
rather than a difference in entitlement.
g. Dissent: Brennan
i. A legislative classification may be upheld only if it
bears a rational relationship to a legitimate state
purpose.
1. The burden rests on those challenging a
legislative classification to demonstrate that
it does not bear the fair and substantial
relation to the object of the legislation
required under the Constitution.
a. When faced with a challenged to a
legislative classification under the
rational-basis test, the court should
ask, first, what the purpose of the
statue are, and, second, whether the
classification is relationally related
to achievement of those purposes.
ii. A principal purpose of the Railroad Retirement Act
of 1974, as explicitly stated by Congress was to
 preserve the vested earned benefits of retirees
who had already qualified for them.
c. Strict Scrutiny and Suspect Classifications: Race and Ethnicity
i. Overview
1. Suspect classifications are presumptively void and thus trigger
strict scrutiny.
2. There are three suspect classifications: race, ethnicity or national
origin, and lawful resident alienage.
a. All classifications by race or ethnicity trigger strict scrutiny
but only some classifications on the basis of status as a
lawful resident alien do so; thus, alienage classifications
are treated separately.
3. Suspect classifications are classifications that immediately give
rise to a presumption of invidious, or wrongful, discrimination.
Discrimination per se is not suspect; it is simply making or
perceiving differences and distinctions.
a. Carolene Products factors:
i. Immutable traits – Classifications by an immutable
trait – a fixed, unchangeable quality – are dubious.
When the immutable trait is irrelevant it becomes
a more suspicious device for classification.
ii. History of purposeful unequal treatment – when a
particular group sharing an immutable trait has
received purposefully unequal treatment of a long
period it is difficult to escape the conclusion that
some prejudice is at the heart of that history. The
combination of a history of purposeful unequal
treatment and prejudice that blocks political
redress of that treatment supports a powerful
argument that such classifications are suspect.
iii. Perennial lack of access to political power. – Mere
lack of political power is not the issue. The issue is
perennial lack of political power coupled with a
lack of any access to that power. Persons barred
from voting lack access to political power. By itself,
this factor is not determinative, but when it is
coupled with other factors the case of suspect
classification becomes stronger.
ii. Purposeful Discrimination Required
1. For a legislative classification to be constitutionally suspect, the
challenger must prove that the classification is intentionally
discriminatory – it was adopted to use the suspect criterion as the
basis for classification. There are three ways to establish this:
a. Facially discriminatory classifications – if a classification
directly employs the suspect criterion, intentional
discrimination is revealed on the face of the statute, and
no further inquiry is necessary to determine that the
classification is suspect.
i. Strauder v. West Virginia – a black man was
convicted of murder by a West Virginia jury limited
by law to adult white males. The Court rule that
the facially discriminatory law violated equal
protection.
ii. Loving v. Virginia
b. Neutral classifications applied in a discriminatory fashion –
A facially neutral classification that is actually applied on a
suspect basis is treated as a suspect classification, but the
party challenging the classicization has the burden of
proving its suspect application.
i. Yick Wo v. Hopkins – To reduce the risk of fire, San
Francisco prohibited operation of laundries in
wooden buildings. All but 10 of San Francisco’s 320
laundries were barred from further operations.
Persons of Chinese ancestry operated 75 percent of
the city’s laundries, and virtually allow were in
wooden structure. Almost two-thirds of the 240
Chinese persons operating laundries were arrested
for violation of the ordinance, while 80-odd
laundries operated by European American in
wooded building were left unmolested. The Court
invalidated the ordinance because San Francisco
had no justification for its invidiously
discriminatory application of a facially neutral law.
c. Neutral classifications motivated by discrimination that
produce a discriminatory effect – A facially neutral
classification that is adopted solely because of an
invidiously discriminatory motive and that produces the
intended effect is treated as a suspect classification.
i. Commillion v. Lightfoot – Tuskegee, Alabama,
redrew its boundaries from a square to an uncouth
twenty-eight sided figure. About 99 percent of the
black voters were allegedly eliminated from
Tuskegee, while not a single white voter was
removed. The Court ruled that if the allegation
were true, the conclusion would be irresistibly,
tantamount for ally practical purposes to
mathematical demonstration, that the legislation is
 solely concerned with segregating white and black
voters.
2. Washington v. Davis
a. Facts: This case involves the validity of a qualifying test
administered to applicant for positions as police officers in
the District of Columbia Metropolitan Police Department.
Applicants were required to take and pass a qualifying
exam that measured verbal ability, vocabulary, reading
and comprehension. Four times as many blacks than
whites failed the test. Respondents black applicants who
had failed the test, make no claim of in tensional
discrimination or purposeful discriminatory acts, but only a
claim that the test has a highly discriminatory impact in
screening out blacks. Griggs v. Duke Power Co, stated
that, were that, disproportionate impact, standing alone
wand without regard to whether it indicated a
discriminatory purpose, was sufficient to establish a
constitutional violation, absent proof by petitioners that
the test was an adequate measure of job performance and
an indicator of probable job success, a burden which the
court ruled that the city had failed to carry.
b. Issue:
c. Holding:
d. Reasoning:
i. The central purpose of equal protection is the
prevention of official conduct discriminating on the
basis of race.
ii. Necessarily, an invidious discriminatory purpose
may often be inferred from the totality of the
relevant facts, including the fact, if it is true, that
the law bears more heavily on one race than
another.
1. Disproportionate impact is not irrelevant,
but it is into the sole touchstone of an
invidious racial discrimination forbidden by
the Constitution.
2. Standing alone, it does not trigger the rule
that racial classifications are to be subjected
to the strictest scrutiny and are justiciable
only by the weightiest of considerations.
iii. The test is neutral on its face and rationally may be
said to serve a purpose the government is
constitutionally empowered to pursue.
 iv. A rule that a statute descended to serve neutral
ends is nevertheless invalid, absent compelling
justification, if in practice it benefits or burdens
one race more than another would far reaching
and would raise series questions about, and
perhaps invalidate, a whose range of tax, welfare
public service, regulator, and licensing statutes that
may be more burdensome to the poor and to the
average black than to the more affluent white.
1. Given such consequences, extension of the
rule beyond those areas where it is already
applicable by reason of statute should await
legislative prescription.
3. Notes
a. Proving Discriminatory Intent. Davis established that
proof of discriminatory intent is indispensable to shift a
facially neutral classification into the suspect category.
i. Arlington Heights v. Metropolitan Housing
Development Corp. – the court confronted the
evidentiary issues. “Official action will not be held
unconstitutional solely because it results in a
racially disproportionate impact. But Davis does
not require a plaintiff to prove that the challenged
action rested solely on racially discriminatory
purposes. Rarely can it be said that a legislature or
administrative body operating under broad
mandate made a decision motivated solely by a
single concern, or even that a particular purpose
was the dominate or primary one. But when there
is proof that a discriminatory purpose has ben a
motivating factor in the decision, judicial deference
is no longer justified.
b. Working with the Arlington Facts. The Arlington factors are
highly contextual.
i. Rogers v. Lodge – The Court upheld a trial court
determination that Burke County’s history of past
racial discrimination in voter registration and
voting was enough to draw an inference of a
present racially discriminatory purpose in
mainlining the at-large electoral system. Hen
coupled with evidence of (1) the lingering effect of
past discrimination in education and voting, (2) a
board of commissioners that was unresponsive and
insensitive to the needs of the black community,
 (3) racial bloc voting, the Court was satisfied that
the trial court’s determination was not clearly
erroneous.
c. Burdens of Proof. The challenger of legislative or
executive action had the burden of proving discriminatory
intent.
i. Mount Healthy City School District Board of
Education v. Doyle, the Court ruled that proof that
a schoolteacher had been fired for exercising his
free speech rights could be rebutted by proof that
he would have been fired anyway for poor job
performance.
d. Applications Beyond Race. The discriminatory intent
requirement applies whenever a litigate contents that a
facially neutral classification is subject to heightened
scrutiny because of its constitutionally suspicion disparate
impact.
i. Personnel Administrator v. Feeney, the Court
upheld a Massachusetts law that preferred military
veterans to nonveterans in civil service hiring. The
Court ruled that the classification was not the
product of invidiously discriminatory intent.
e. Criminal Jury Selection. A well-established feature of
American law is to permit both prosecution and defense to
excuse a limited number of prospective jurors for no
reason at all.
i. Batson v. Kentucky, Batson required prosecutors to
articulate a race-neutral explanation for their
preemptory challenges.
f. Government Response to Private Bias.
i. Palmer v. Thompson – Jackson Mississippi closed
its public swimming pools after a federal judge had
ordered them to be desegregated. The closure,
said the Court, affected all races equally and had
been motivated by the city council’s determination
that operation of racially integrated swimming
pools would be uneconomical, not because of
ideological opposition to racial integration.
ii. Palamore v. Sidoti – A white divorced father sought
custody of this three-year-old daughter from his
white ex-wife after her marriage to a black man. A
Florida judge ruled that the best interest of the
child warranted the custody change because
despite the strides that have been made in
 bettering race relations, it is inevitable that the girl
will suffer from social stigmatization. The Court
ruled that it was impermissible to take private
racial bias into account in decided that was in the
best interest of the child: “The 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,
given them effect.”
iii. Official Racial Segregation
1. The Road to Brown
a. Dred Scott v. Sandford – the Court ruled that African
Americans that whose ancestors came to America as
slaves were not and could not be U.S. citizens and that
blacks had not legal rights that whites had to obey.
b. Plessy v. Ferguson
i. Louisiana required railroad to provide “equal but
separate accommodations for the white and black
races and subjected passengers who used the
wrong accommodations to criminal liability. Plessy
refused to leave the whites only coach and was
subsequently convicted under the law. The Court
upheld his conviction.
1. Justice Brown wrote that even though the
object of equal protection was undoubtedly
to enforce the absolute equality of the two
races before the law, this did not abolish
distinctions based on color, or operate to
enforce social, as distinguished form
political, equality, nor did it require
commingling of the two races upon terms
unsatisfactory to either. Louisiana was at
liberty to act with reference to the
established usage, customs, and traditions
of the people, and with a view to the
promotion of their comfort, and the
preservation of the public peace and good
order. It was a mere assumption that the
enforced separation of the two races
stamps the colored race with a badge of
inferiority. If this be so, it is solely because
the colored races chooses to but that
construction upon them.
 2. Justice Harlan wrote in respect of civil
rights, common to all citizens, the
Constitution does not permit any public
authority to know the race of those entitled
to be protected in the enjoyment of such
rights. The Civil War Amendment removed
the race line from our governmental
systems. In the view of the Constitution
there is in this country no superior,
dominate, ruling class of citizens. There is
not caste here. Our Constitution is color-
blind, and neither knows nor tolerates
classes among citizens. IN respect of civil
rights, all citizens are equal before the law.
c. Missouri ex rel. Gaines v. Canada
i. Missouri required racially separate education. The
white university system included a law school; the
black system did not, but Missouri would pay
reasonable tuition at out-of-state law schools to
enable black students to attend law school. The
Court found Missouri’s scheme to be a violation of
equal protection. “The basic consideration is not
what sort of opportunities other states provide, or
whether they are as good as those in Missouri, but
opportunists Missouri itself furnishes to white
students and denies to blacks solely upon the
ground of color.”
ii. Sweatt v. Painter
1. The University of Texas refused to admit
Sweatt, an African American, to its aw
school on the ground that a public “blacks
only” law school was available. The Court
found Texas’s refusal a denial of equal
protection because the black institution was
quantitatively and qualitatively inferior.
iii. McLaurin v. Oklahoma State Regents
1. The University of Oklahoma admitted
McLaurin, and African American, to its
education school but made him sit in a
“black only” section in each classroom, gave
him a special table in the library, and barred
him from eating white white students in the
cafeteria. Although McLaurin enjoyed the
same physical faculties as whites, the Court
 found the arrangement unequal because it
impaired and inhibited his ability to study,
to engage in discussions and exchange
views with other students, and in general,
to learn his profession.
2. The End of Separate but Equal
a. Brown v. Board of Education
i. Facts: The petitioners have been denied entry into
a segregated school. They petition that segregated
public schools are not equal and cannot be made
equal and that hence they are deprived of the
equal protection of the laws.
ii. Issue:
iii. Holding:
iv. Reasoning:
1. We cannot turn the clock back to 1869
when the Amendment was adopted , or
even to 1896, when Plessy v. Ferguson was
written. We must consider public
education in the light of its full
development and its present place in
American life throughout the Nation.
2. In these days, it is doubtful that any child
may reasonably be expend to succeed in life
if he is denied the opportunity of an
education.
a. Such an opportunity, where the
state has undertaken to provide it, is
a right which must be made
available to all on equal terms.
3. To separate children based solely on their
race generates a feeling of inferiority as to
their status in the community that may
affect their hearts and minds in a way
unlikely to eve be undone.
4. In the field of public education the doctrine
of separate but equal has no place.
a. Separate educational facilities are
inherently unequal.
b. Notes
i. Equal Protection and the Federal Government.
Bolling v. Sharpe, the Court Struck down laws that
segregated public schools in Washington D.C.,
ruling that such segregation was an impermissible
 infringement of the substantive liberty protected
by due process clause of the Fifth Amendment.
ii. Brown II
1. What means should be used to implement
the principles announced in Brown I?
a. The decision in Brown I shall be
implemented with all deliberate
speed.
b. The Court held that the problems
identified in Brown I required varied
local solutions. The schools are to
implement the principles which the
Supreme Court embraced in its first
Brown decision. Urged localities to
act on the new principles prompbly
and to move toward full compliance
with them with all deliberate speed.
iii. The Constitutional Right Protected by Brown
iv. Implementing Brown
1. Green v. County School Board. The school
district adopted a freedom-of-choice plan
that permitted students to chose the school
they wished to attend upon entering the
system. The Court invalidated the plan in
an opinion by Justice Brennan. The burden
on a school board is to come forward with a
plan that promise realistically to work, and
to work now.
2. Swann v. Charlotte-Mecklenburg Board of
Education – geographic zoning plan coupled
with freedom of choice provisions. The
Court invalidated these gerrymandered
zones.
3. Although de facto segregation violates the
equal protection clause only when it was
produced by intentionally invidious
discrimination plaintiffs must prove not
only that segregated schooling exists but
also that it was brought about or
maintained by intentional state action.
Proof of this deliberate wrongdoing as to
any part of a school system creates a
presumption that other segregated
schooling within the system is not
 adventitious. The school system has the
burden of proving that other segregated
schools within the system are not also the
result of intentionally segregate actions. To
sustain that burden of proof, the school
officials must show either (1) that
segregative intent was not among he
factors that motivated their actions, or (2)
that it past segregate acts did not create or
contribute to the current segregated
condition of the core city schools
v. The Limits of Judical Remedial Power in School
Desegregation.
1. After a federal district judge has found that
the Detroit schools had been
unconstitutionally racially segregated, the
district judge ordered 53 suburban school
districts to patriate in the desegregation of
the Detroit public schools though
interdistrict busing and other pupil
assignment methods.
vi. Achieving Unitary Status: the End of Judicial
Supervision.
1. Board of Education of Oklahoma City Public
Schools v. Dowell. Oklahoma City
maintained an officially racially segregated
school system that since 1963 had been
subject to judicial supervision. IN 1977,
satisfied that the city had achieved a unitary
school system, the district court terminated
the case. In 1984, respond to argument
that the pupil assignment scheme placed
greater burdens on young black children,
the school board introduced a
neighborhood school plan for grades K
though 4, coupled with an option to
transfer from any school in which the
student was in the racial majority to any
school in which the student would be part
of the minority. Justice Rehnquist wrote for
the court denying the motion to reopen the
judicial supervision. Unitary status is
achieved and judicial control should base
when (1) all vestiges of past discrimination
 have been removed and (2) the schools are
in good faith compliance with any existing
court orders.
2. Freeman v. Pitts. The Court applied Dowell
in affirming a district court’s partial
termination of judicial supervision of the De
Kalb County, Georgia, schools. Because the
schools were unitary insofar as pupil
assignment and physical facilities were
concerned.
iv. Race and the Political Process
1. Anderson v. Martin, the Court applied strict scrutiny in voiding a
Louisiana law requiring each candidate’s race to be designated ion
the ballot. When the political process is altered in a manner that
odes not explicitly use race but has a racially disparate impact, the
problem is essentially identical to other disparate-impact cases.
2. Hunter v. Erickson
a. Facts: In 1964, the Akron, Ohio, City Council enacted an
ordinance to “assure equal opportunity to all person to
live in decent housing facilities regardless of race, color,
religion, ancestry or national origin.” Before this
ordinance could be implemented, Akron’s voters approved
a charter amendment placed on the ballot by popular
initiative, stipulating that any ordinance regulating the use,
sale, advertisement, transfer listing agreement, lease,
sublease or financing of real property on the basis of race,
religion, national origin or ancestry must first be approved
by a majority of the electors voting on the question.
Hunter sought to compel implementation and
enforcement of the 1964 ordinance. An Ohio trial court
ruled that the 1964 ordinance was nullified by the charter
amendment. The Ohio Supreme Court upheld that ruling,
adding that the charter amendment di not violate the
Fourteenth Amendment’s equal protection clause.
b. Issue: Whether Akron has denied equal protection to
Hunter by amending the city charter to prevent the city
council from implementing any ordinance dealing with
race, religion, ancestral discrimination in housing without
the approval of the majority of voters in the city.
c. Holding: Racial classification “bear a heavier burden of
justification” than other classifications, and here Akron has
not justified its discrimination against minorites, which
constitutes a denial of the equal protection of the laws.
d. Reasoning: White
 i. The amendment disadvantages those who would
benefit from laws barring racial, religious, or
ancestral discrimination as against those who
would bar other discrimination or who would
otherwise regulate the real estate market in their
favor.
ii. Although facially neutral, the reality is that the
law’s impact falls on the minority.
1. Because the core of the 14th Amendment is
the prevention of meaningful and
unjustified official distinctions based on
race, racial classification is constitutionality
suspect and subject to the most rigid
scrutiny.
e. Concurrence: Harlan
i. For equal protection purposes, laws which define
the powers of political institutions fall into two
classes.
1. First, a statute may have the clear purpose
of making it more difficult or racial and
religious minorities to further their political
aims.
a. Such a law is subject to strict
scrutiny.
2. Second class are designed with the aim of
providing a just framework within which the
diverse political groups in our society may
fairly compete and are not enacted with the
purpose of assisting one particular group in
its struggle with its political opponents.
f. Dissent: Black
i. The Court has power to invalidate state laws that
discriminate on account of race it does not have
power to prevent States from repealing laws
prohibiting private racial discrimination.
3. Washington v. Seattle School District
a. Facts: The City of Seattle set out a plan for desegregation
that included mandatory bussing and reassignments.
Shortly after a group drafted a statewide petition
otherwise known as Initiative 350. The initiative stated
that no school board shall directly or indirectly require any
student to attend a school other than the school which is
geographically nearest or next nearest the student’s place
of residence and which offers the course of study pursued
 by such student. The initiative focused almost exclusively
on the wisdom of forced busing. It passed by a margin of
66% statewide and 61% in Seattle. A federal district court
found the initiative unconstitutional as an impermissible
racial classification in violation of Hunter v. Erickson,
because it permits busing for non-racial reasons but
forbids it for racial reasons.
b. Issue: Is a state permitted to restructure its legilsative
process based only on race-conscious factors?
c. Holding: Any state action with racial focus that makes it
more difficult for certain racial minorities than for other
groups, to achieve legislation that is in their interest is
subject to strict scrutiny.
i. A state is not permitted to restructure its legislative
process based only on race-conscious factors.
d. Reasoning:
i. Equal protection guarantees racial minorities the
right to full participation in the political life of the
community, and reaches any measure that subtly
distorts governmental processes in such a way to
place special burdens on the ability of minority
groups to achieve beneficial legislation.
ii. Laws structuring political institutions or allocating
political power according to neutral principles are
not subject to equal protection attack, though they
may make it more difficult for minorities to achieve
favorable legislation.
1. Because such laws make it more difficult for
every group in the community to enact
comparable laws, they provide a just
framework within which the diverse
political groups in our society may fairly
compete.
iii. Different analysis happens when the state allocates
governmental power nonneutrally, by explicitly
using the racial nature of a decision to determine
the decision-making process.
1. Initiative 350 must fall because it does not
attempt to allocate governmental power on
the basis of any general principle but uses
the racial nature of an issue to define the
governmental decision making structure
and thus imposes substantial and unique
burdens on racial minorities.
 iv. Despite is facial neutrality there is little doubt that
the initiative was effectively drawn for racial
purpose….it is beyond reasonable dispute that the
intuitive was enacted because of, not merely in
spite of its adverse effects upon busing for
integration.
v. When the political process or the decision making
mechanism used to address racially conscious
legislation is singled out for peculiar and
disadvantageous treatment, the governmental
action plainly rests on distinctions based on race.
e. Dissent
i. In the absence of a constitutional violation, no
decision of this Court compels a school district to
adopt or maintain a mandatory busing program for
racial integration.
ii. Initiative 350 adopted a policy of racial neutrality.
1. The policy in no way interferes with the
power of state or federal courts to remedy
constitutional violations.
iii. The initiative does not impede enforcement of the
Fourteenth by establishing a racially discriminatory
requirement.
1. It is neutral on its face and has neutral
effects.
iv. The initiative does not place special burdens on
racial minorities within the governmental process,
such that interferences with the State’s distribution
of authority is justified.
4. Notes
a. Crawford. Crawford v. Board of Education, on the same
day as Washington v. Seattle School District. California
courts had interpreted the California constitution to
require bussing of students to achieve racial balance in
public school under circumstances where such busing was
not compelled by the federal Constitution. California
voters then amended the state constitution to provide
that “state courts shall not order mandatory pupil
assignment or transportation unless a federal court would
do so to remedy a violation of the Equal Protection Clause.
The Court found no violation of equal protection. Strict
scrutiny was not applicable because the amendment id not
embody a racial classification, distort the political process
 for racial reasons, or allocate governmental or judicial
power on the basis of a discriminatory principles.
i. Rather, it changed the substantive law of California
on a race-neutral basis and did not alter the
political process.
5. Schuette v. Coalition to Defend Affirmative Action
a. Facts: In 2006 Michigan voters adopted an amendment to
the State Constitution prohibiting state and other
governmental entities in Michigan from granting race-
based preferences in a ide range of actions and decisions,
including admissions into state universities.
b. Issue: Whether an amendment to the Constitution of the
State of Michigan is invalid under the Equal Protection
Clause o the Fourteenth Amendment.
c. Holding:
d. Reasoning: Kennedy
i. Government action that classifies individual on the
basis of race is inherently suspect and carries the
danger or perpetuating he very racial division the
polity seeks to transcend.
ii. There is no authority in the Constitution of the
Untied States or in this court’s precedent for the
judiciary to set aside Michigan laws that commit
this policy determination to the voters.
e. Concurring: Roberts
i. .
f. Concurring: Scalia
i. Facially neutral laws need intent and causation and
not merely the existence of racial disparity.
g. Concurring: Breyer
i. This case does not involve a recording of the
political process; it does not in fact involve the
movement of decision making form one political
level to another.
1. The amendment took decision making
authority away from the unelected actors
and placed it in the hands of the voters.
h. Dissent
i. A majority of voters in the State of Michigan
changed the basic rules of the political process in
that State in a manner that uniquely disadvantaged
racial minorities.
ii. The one and only policy a Michigan citizen may not
seek though this long-established is a race-sensitive
 policy that considers race in an individualized
manner when it is clear that race-neutral
alternatives are not adequate to achieve diversity.
iii. When the majority reconfigures the political
process in a manner that burdens only a racial
minority, that alteration triggers strict judicial
scrutiny.
iv. Under Hunter and Seattle governmental action
deprives minority groups of equal protection when
it (1) has a racial focus, targeting a policy or
program that inures primarily to the benefit of the
minority, and (2) alters the political process in a
manner that uniquely burdens racial minorities’
ability to achieve their goals through that process.
v. Section 26 has a racial focus.
1. Race matters.
2. Race matters in part because of the long
history of racial minorities being denied
access to the political process.
3. Race also matters because of persistent
racial inequality in society – inequality that
cannot be ignored and that has produced
stark socioeconomic disparities.
vi. The way to stop discrimination on the basis of race
is to speak openly and candidly on the subject of
race, and to apply the Constitution with eyes open
to the unfortunate effects of centuries of racial
discrimination.
v. Affirmative Action
1. First Views: Blakke
a. Regents of the University of California v. Bakke
i. Facts: U.C. Davis has a special admission program
of the Medical School, which is designed to assure
the admission of a specified number of students
from certain minority groups.
ii. Issue:
iii. Holding:
iv. Reasoning:
1. Special admissions programs are undoubtly
classification based.
2. When a classification denies an individual
something based on race it is presumed to
be suspect.
a. Therefore, it has strict scrutiny.
 3. Special admissions program purports to
serve the purposes of
a. Reducing the historic deficit of
traditionally disfavored minorities in
medical schools and in the medical
profession
b. Countering the effects of societal
discrimination
c. Increasing the numbers of
physicians who will practice certain
communities currently underserved;
and
d. Obtaining the educational benefits
that flow from an ethnically diverse
student body.
4. If petitioner’s purpose is to assure within its
student body some specified percentage of
a particular group merely because of its
race or ethic origin, such a preferential
purpose must be rejected not as
insubstantial but as facially invalid.
5. The State certainly has a legitimate and
substantial interest in ameliorating, or
eliminating where feasible, the disabling
effect of identified discrimination.
a. Helping certain groups who have
been victims of societal
discrimination, alone, is not enough
to support racial classifications.
b. Petitioner did not met the burden
that letting in minorities will serve
underrepresented communities.
6. School must prove that racial classification
is necessary to promote divers student
body.
a. Focus solely on race diversity would
hinder rather than attainment of
genuine diversity.
7. If race is just a plus, no facially invalidity is
presumed.
8. The State has to prove that the racial
classification is necessary to promote a
substantial state interests.
v. Concurrence and Dissent: Brennan
 1. Government may take race into account
when it acts not to demean or insult any
racial group, but to remedy disadvantage
cast on minorities by past racial prejudice,
at least when appropriate finding have been
made by judicial, legislative, or
administrative bodies with competent to
act in this area.
2. Whites do not fall into a suspect class
3. Admitting minority student disadvantaged
by the effects of past discrimination is
sufficiently important to justify use of race-
conscious.
vi. Concurrence and Dissent
1. During most of the past 200 years, the
Constitution as interpreted by this Court di
not prohibit the most ingenious and
pervasive forms of discrimination against
Blacks. Now, when a Stat acts to remedy
the effects of that legacy of discrimination, I
cannot believe that this same Constitution
stands as a barrier.
vii. Justice Blackmun
1. In order to get beyond race, we must first
take account of race.
viii. Justice Stevens
1. Special admission program violated Title VI
of the Civil Rights Act of 1964.
b. Note on the Meaning lf Bakke
i. When a plurality opinion is fashioned the view is
that it is decided on narrow grounds.
ii. Wygant v. Jackson Board of Education.
1. Societal discrimination alone is not
sufficient to justify a racial classification.
2. The layoffs were not narrowly tailored to
the compelling objective of remedying past
unlawful discrimination.
3. The burden of layoffs is too intrusive.
2. General Principles
a. City of Richmond v. J.A. Croson Co.
i. Facts:
ii. Issue:
iii. Holding:
iv. Reasoning: O’Conner
 1. Need not have specific finding to engage in
race-conscious relief.
a. If the City can show that they have
been a passive participant in racial
exclusion then the city can take
affirmative actions to remedy the
situation.
2. A generalized assertion that there has been
past discrimination an entire industry
provides no guidance for a legislative body
to determining the precise scope of the
injury.
a. Racial discrimination alone cannot
stand to justify a rigid quota.
3. The mere recitation of remedial or
legitimate purpose is given little or no
weight.
4. The history of racial classifications in this
country suggest that blond judicial
deference to legislative or executive
pronouncement of necessity has not place
in equal protection analysis.
5. States may take remedial measures hen
their spending practices shows a history of
discrimination.
6. The over inclusion of racial preference
impugns the city claim for remedial
measures.
7. The city here has other race neutral
measures it could have taken to combat the
issue.
v. Concurring: Stevens
1. The courts are a better place to redress past
discrimination.
vi. Concurring: Scalia
1. Basically, no justification to affirmative
action can ever be shown.
vii. Dissent: Marshall
1. Race-conscious classification designed to
further remedial goals “must serve
important governmental objective and
must be substantially related to
achievement of those objectives” in order
to withstand constitutional scrutiny.
b. Note
i. Metro Broadcasting v. FCC
1. “Race-conscious measures mandated by
Congress – even if those measures are not
“remedial” in the sense of being designed
to compensate victims of past
governmental or societal discrimination –
are constitutally permissible to the extent
they serve important governmental
objective within the power of Congress and
are substantially related to the
accomplishment of those objectives.”
c. Adarand Constructors, Inc. v. Pena
i. Facts:
ii. Issue:
iii. Holding:
iv. Reasoning: O’Conner
1. While both parties agree that federal racial
classifications should be subject to some
form of heightened scrutiny, they disagree
as to the exact level required.
a. Precedent decisions have
established three general
propositions regarding
governmental racial classifications
that are useful in guiding this
inquiry.
i. First, the principle of
“skepticism” means that all
government preference
based on racial or ethnic
criteria must be heavily
examined.
ii. Second, the principle of
“consistency” means that the
actual race of the group at
issue does not matter for
purposes of the scrutiny
afforded racial classifications
as all racial classifications
must receive the same
treatment under the Equal
Protection Clause.
 iii. Third, the principle of
“congruence” means that
the same rules for equal
protection analysis under the
Fourteenth Amendment
should also guide equal
protection analysis under the
Fifth Amendment.
b. When taken together, these
precedent principles comprise the
rule that all racial classifications,
imposed by whatever federal,
state, or local governmental actor,
must be analyzed by a reviewing
court under strict scrutiny that is,
such classifications are
constitutional only if they are
narrowly tailored to further
compelling governmental interests.
2. Justice Stevens’s argument that the Court
should treat programs differently according
to whether their racial discrimination is
“benign” or “invidious” is rejected, as all
racial classifications by the government
have detrimental effects on minorities.
3. The government has a significant
responsibility to address past instances of
racial discrimination in America’s history,
and applying strict scrutiny to future
classifications is the only way to accomplish
this.
4. To the extent that precedent cases hold
otherwise, they are overruled.
5. The decision of the court of appeals is
vacated and remanded for further
consideration under strict scrutiny.
v. Concurrence: Scalia
1. Government can never have a compelling
state interest.
vi. Concurrence: Thomas
1. .
vii. Dissent: Stevens
1. There is a significant different between
government programs that further
 oppression versus those that seek to
remedy past instances of facial
discrimination by promoting social and
economic equality.
viii. Dissent: Ginsburg
1. Racial minorities are still confronted with
unique difficulties in getting jobs, securing
housing, and winning business contracts.
2. Congress could have correctly concluded
that an affirmative action program was
necessary to secure the equal protection of
the laws required by the Fourteenth
Amendment because of American’s history
of discrimination and its continued negative
consequences.
3. Public Universities and Public Schools
a. Grutter v. Bollinger
i. Facts: Michigan Law School “critical mass” of
unrepresented minority students to ensure their
ability to make unique contributes to the character
of the Law School.
ii. Issue: Whether the use of race as a factor in
student admissions by the University of Michigan
Law School is unlawful.
iii. Holding:
iv. Reasoning:
1. Racial classifications imposed by the
government must be analyzed by strict
scrutiny.
a. This means that such classification
are constitutional only if they are
narrowly tailored to further
compelling governmental interests.
2. The Law School has a compelling interest in
attaining a diverse student body.
a. The Law School’s educational
judgment that such diversity is
essential to its educational mission
is one to which we defer.
b. The Law school has a compelling
interest I n a diverse student body is
informed by our view that attaining
a diverse student body is at the
heart of the Law School’s proper
 institutional mission, and that good
faith on the part of the university is
presumed absent showing to the
contrary.
c. The Law School’s concept of critical
mass is defined by reference to the
educational benefits that diversity is
designed to produce.
i. These benefits are
substantial.
ii. The Law School’s admission
policy promotes “cross racial
understanding,” to helps
break down racial
stereotypes, and enables
students to better
understand person of
different races.
iii. These benefits are important
and laudable, because
classroom discussion is
livelier, more spirited, and
simply more enlightening
and interesting when the
subtends have the greatest
possible variety of
backgrounds.
3. Even in the limited circumstance when
drawing racial distinctions is permissible to
further a compelling state interest, the
mans chosen to accomplish the
government’s asserted purpose must be
specifically and narrowly framed to
accomplish that purpose.
a. The purpose of the narrow tailoring
requirement is to ensure that the
means chosen fit the compelling
goal so closely that there is little or
no possibility that the motive for the
classification was illegitimate racial
prejudice or stereotype.
b. To be narrowly tailored, a race-
conscious admission program
cannot use a quota system…Instead,
 a university may consider race or
ethnicity only as a plus in a
particular applicant’s file, without
insulating the individual from
comparison with all other
candidates for the available seats.
4. The system the Law School is not a quota.
a. Some attention to numbers, without
more, does not transform a flexible
admission system into a rigid quota.
5. The Law School’s race-conscious admission
program adequately ensures that all factors
that may contribute to student body
diversity are meaningfully considered
alongside race in admission decisions.
a. The Law School actually gives
substantial weight to diversity
factors besides race.
b. It frequently accepts nonminority
applicants with grades and test
scores lower that underrepresented
minority applications who are
rejected.
i. This shows that the Law
School seriously weighs
many other diversity factors
besides race that can make a
real and dispositive
difference for nonminority
applications as well.
6. Narrowly tailored does not mean to exhaust
every race-neutral alternative.
a. Narrow tailoring does, however,
require serious, good faith
consideration of workable race-
neutral alternatives that will achieve
the diversity the university seeks.
i. The law school sufficiently
considered workable race-
neutral alternatives.
7. Narrow tailoring must not unduly burden
individual who are not members of the
favored racial and ethic group.
v. Dissent: Rehnquist
 1. Basically this “critical mass” is a qutoa.
vi. Dissent: Kennedy
1. The law school has demonstrated how
individual consideration is, or can preserved
at this stage of the application process
given instruction to attain what it calls
critical mass.
vii. Dissent: Scalia
1. Unlike a clear constitutional holding that
racial classification in state educational
institutes are not permitted or even a clear
anticonstitutional holding, today’s decision
seems willfully designed to prolong the
controversy and litigation.
2. The Constitution proscribes government
discrimination on the basis of race and
state-provided education is no exception.
b. Gratz v. Bollinger
i. Facts: The University of Michigan used a 150-point
scale to rank applicants, with 100 points needed to
guarantee admission. The university gave
underrepresent ethnic groups, inclining African-
Americans, Hispanics, and Native Americans, an
automatic 20-point bonus towards their score,
while a perfect SAT score was worth 12 points.
ii. Issue:
iii. Holding: The University’s 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 the interest in educational diversity that
respondents claim justifies their program.
iv. Reasoning:
1. Because the University’s use of race in its
current freshman admission s policy is not
narrowly tailored to achieve respondents’
asserted compelling interest in diversity,
the admission policy violates the Equal
Protection Clause of the Fourteenth
Amendment.
v. Dissent: Souter
1. The very nature of a college’s permissible
practice of awarding value to racial diversity
 means that race must be considered in a
way that increases some applicants’
chances for admission.
vi. Dissent: Ginsburg
1. The Constitution is both color blind and
color conscious.
a. It is color blind in the sense that the
equal protection clause, a
classification that denies a benefit,
causes harm, or imposes a burden
must not be based on race.
b. Color conscious to prevent
discrimination being perpetuated
and to undue the effects of past
discrimination.
2. The Constitution, properly interrupted,
permits government officials to respond
openly to the continuing importance of
race.
a. Among constitutally permissible
option, those that candidly disclose
their consideration of race seem to
me preferable to those that conceal
it.
c. Notes
i. The Meaning of Diversity as a Compelling Interest
ii. The Primacy of Strict Scrutiny of Racial
Classifications. Johnson v. California – California
racially segregates prisoner placed in double cells
for the fist 60 days of their confinement. The state
maintained that its practice should be upheld
because it was reasonably related to tits legitimate
penological interest of protecting he safety of
prisoners and guards alike. The Court upheld the
California law.
d. Fisher v. University of Texas at Austin (Fisher I)
i. Facts: The University of Texas concluded that racial
minority were largely absent from its many small
enrolment classes, and thus decided to increase
enrollment of racial minorities to achieve a critical
mass. To do so, race was explicitly considered in
admission decision.
ii. Issue:
iii. Holding:
 iv. Reasoning:
1. Once the University has established that its
goal of diversity is consistent with strict
scrutiny, however, there must still be a
further judicial deamination that the
admissions process meats strict scrutiny in
its implementation.
a. The University must prove that the
mans chose by the University to
attain diversity are narrowly tailored
to that goal.
2. The reviewing court must ultimately be
satisfied that no workable race-neutral
alternative would produce the educational
benefits of diversity.
a. Strict scrutiny imposes on the
university the ultimate burden of
demonstrating, before turning to
racial classifications, that available,
workable, race-neutral alternative
do not suffice.
3. Strict scrutiny does not permit a court to
accept a school’s assertion that its
admissions process uses race in a
permissible way without a court giving close
analysis to the evidence of how the process
works in practice.
e. Fisher II
i. Fisher I set three controlling principles:
1. Strict scrutiny of affirmative action
admission processes,
2. judicial deference to reasoned explanation
of the decision to pursue student body
diversity, and
3. no judicial deference for the determination
of whether the use of race in admission
process is narrowly tailored.
ii. Texas combined Top Ten Percent-holistic
admission policy is unique and data on resulting
diversity was limited; however, it noted that the
university should regulate evaluate availed data
and tailor its approach in light of changing
circumstances, ensuring that race plays no greater
 role than is necessary to meet its compelling
interest.
f. Parents Involved in Community Schools v. Seattle School
District No. 1; Meredith v. Jefferson County Board of
Education
i. Facts: Seattle School District No. 1 and Jefferson
County School District (defendants) voluntarily
adopted student assignment plans that relied on
race to determine which public schools certain
children could attend. In each case, the schools
used this system to ensure that the racial balance
in any given public school fell within a
predetermined range based on the racial
composition of the school district as a whole.
Parents Involved in Community Schools (PICS)
(plaintiff) were parents of students denied
assignment to particular schools under these plans
solely because of their race. PICS brought suit in
district court, claiming that the school districts’
actions violated the Fourteenth Amendment’s
guarantee of equal protection of the laws. The
district court dismissed the case and upheld the
constitutionality of the racial assignment policy,
and the court of appeals affirmed. The United
States Supreme Court granted certiorari.
ii. Issue: May public school districts, that have never
legally segregated schools, assign students to
particular solely on the basis of race in order on the
basis of race in order to achieve racial integration.
iii. Holding: School assignments relying on racial
classifications are subject to strict scrutiny. The
school districts’ use of racial classifications must be
narrowly tailored to achieve a compelling
government interest.
iv. Reasoning: Roberts
1. There are two government interests that
qualify as compelling:
a. the interest of remedying the effects
of past discrimination; and
b. the interest of promoting student
body diversity in the context of
higher education upheld in Grutter
v. Bollinger.
2. The racial assignment programs at issue are
not related to either of these previously
recognized interests.
a. Firstly, the programs are not used to
remedy the effects of past racial
discrimination because such
discrimination has never before
occurred in PICS districts.
Additionally in Grutter, the diversity
interest was not focused on
promoting racial diversity alone, but
rather encompassed all factors
contributing to the diversity of the
student body.
3. The main factor that distinguishes Grutter
from the present case is that the admissions
staff in Grutter analyzed each applicant as
an individual, not simply as a member of a
racial group.
a. Here, race is upheld as the sole
factor in making admissions
decision.
b. The school districts cite studies
showing that students tend to gain
intangible benefits from being
educated in a racially diverse
environment. This argument is
rejected.
c. The school districts provide no
evidence that the amount of racial
diversity necessary to achieve these
intangible benefits coincides with
the amount of racial diversity
achieved by their racial assignment
policies.
4. Without clear evidence that the school
districts implemented their policies for the
purpose of working toward a specific
diversity goal that would benefit their
students, the race-based policies are
unconstitutional.
5. The certain costs of permitting the school
districts to continue their race-based
 assignment policies far outweighs the
potential benefits.
6. Limiting where students may or may not
attend school based on race alone makes
the school districts’ actions no different
than those prohibited by the Court in Brown
v. Board of Education
v. Concurrence: Kennedy
1. Race-conscious mechanisms used by
schools to promote the goal of diversity in
higher education constitute a legitimate
state interest.
2. States have a compelling interest in
avoiding racial isolation that justifies
enacting policies such as those used by the
school districts to achieve this goal.
3. However, the school districts’ did not meet
their burden required under strict scrutiny
of showing that their racial assignment
policies are narrowly tailored to meet the
compelling state purpose of diversity in
higher education.
vi. Concurrence: Thomas
1. The plurality’s result is correct, but the
plurality argues incorrectly that racially
diverse classrooms promote better
educational experiences.
2. Numerous social and political science
studies prove that African American
students can succeed in historically black
colleges.
3. The implication that African American
students cannot learn as well in school
unless seated in classrooms next to
Caucasian students is sharply rejected.
vii. Dissent: Stevens
1. The plurality misused and misapplied the
precedent decisions on the issue, including
its decision in Brown.
2. The plurality decision constitutes a stark
departure from the previous interpretation
of that case.
viii. Dissent: Breyer
1. The plurality’s opinion strongly deviates
from its precedent decisions and strips from
communities a powerful tool by which they
can bring about desegregation in their
school districts.
2. The school districts’ efforts to date in using
such policies to eradicate desegregation
should be applauded.
3. Indeed, the policies already have been
largely successful in reducing the amount of
children attending single-race schools.
4. The goal of creating “unitary” schools is a
compelling state interest.
5. The school districts’ policies are narrowly-
tailored means for achieving that interest.
Additionally, the Equal Protection Clause
permits school districts to use race-
conscious criteria for the purpose of
achieving positive race-related goals, even
when the Constitution does not compel
such actions.
6. Precedent suggests that school authorities
are charged with enacting policies to bring
about Constitutional goals, and the school
authorities in the present case should have
the authority to enact whatever policies
they deem fit to bring about the racial
desegregation requirement of the
Fourteenth Amendment to the
Constitution.
7. Additionally, the policies used constitute
narrowly-tailored means to achieve the
legitimate state interest of racial
desegregation.
8. Judges are not as competent as school
administrators to determine what policies
are most prudent and efficient for achieving
these goals.
9. Ultimately, this decision will have significant
consequences for racial equality in the
future and greatly restrict the force of
Brown as applied to public school districts.
10. .
11. .
d. Strict Scrutiny and Suspect Classifications: Lawful Resident Aliens
i. Classifications treating lawful resident lines differently than citizens are
said to be subject to strict scrutiny, but the Court has recognized so may
exceptions to this principles that in practice it means that the only
alienage classifications subject to strict scrutiny are those used by states,
and then only with respect to matters that do not implicate a state’s
legitimate power to preserve the basic conception of a political
community.
ii. Sugarman v. Dougall
1. Facts: New York’s Civil Service Law permitted only American
citizens to hold permanent civil service positions.
2. Issue: Whether NY’s flat statutory prohibition against the
employment of aliens in the competitive classified civil service is
constitutionally valid.
3. Holding:
4. Reasoning: Blackmun
a. Our standard of review of statues that treats aliens
differently from citizens requires a greater degree of
precision.
i. The law is neither narrowly confined nor precise in
its application.
ii. The law which denies all aliens the right to hold
positions in New York’s classified competitive civil
service violates equal protection.
5. Dissent: Rehnquist
a. There is a difference between citizen and an alien and the
alien is not a suspect class.
b. In his view, the proper judicial inquiry is whether nay
rationale justification exists for prohibiting aliens from
employment in the competitive civil service and form
admission to a state bar.
iii. Notes
1. Scope of Strict Scrutiny.
a. In re Griffith, the Court applied strict scrutiny to void
Connecticut’s exclusion of lawfully resident’s aliens form
the practice of law.
2. Alienage Classifications by the Federal Government. The federal
government has exclusive control over immigration and
naturalization and thus enjoys broad authority to employee
alienage as a statutory criterion in ways that are forbidden by the
states.
a. Mathews v. Diaz, the Court applied minimal scrutiny in
upholding a federal statue that limited Medicare eligibility
to citizens and lawfully admitted aliens who had resided in
 the United States for alt least five years. The Court relied
heavily on Congress’s brad power over naturalization and
immigration.
b. Though Congress or the President may use alienage as a
classification device without triggering strict scrutiny, such
classification by administrative agencies may offend the
due process clause, rather than the equal protection
clause.
i. Hampton v. Mow Sun Wong – struck down a Civil
Service Commission regulation that barred aliens
from most civil service jobs.
e. Intermediate Scrutiny: Sex and Illegitimacy
i. While sex classifications have been used to stereotype and marginalize
women, facts that argue for heightened scrutiny, the Court also things
that sex, far more often than race, may be relevant to legitimate
governmental objectives.
ii. Sex classifications invited only minimal scrutiny and were uniformly
upheld until Reed v. Reed.
1. Idaho law stipulated that man should be preferred to women as
court-appointed administrators of an intestate decadent’s estate.
2. The Court applied minimal scrutiny to the law but invalidated it as
irrational – “the very kind of arbitrary legislative choice forbidden
by the Equal Protection Clause.”
iii. Frontiero v. Richardson
1. Federal law permitted a male member of the armed services
automatically to claim his wife as a dependent, and thus acquire
increased housing and medical benefits, but it did not permit a
female service member to do so unless she could demonstrate
that her husband was in fact dependent on her for over half of his
support.
a. The Court struck down the provision as a violation of equal
protection but could not muster a majority around any
one standard of review.
i. Four justices, let by Justice Brennan, argued for
treating sex as a suspect classification, thus
triggering strict scrutiny.
1. Relied on a long and unfortunate history of
sex discrimination and the fact tat sex, like
race and national origin, is an immutable
characteristic that frequently bears no
relationship to ability to perform or
contribute to society.
 ii. Four justices though the provision violated equal
protection but were unwilling to declare that sex
was as suspect classification.
1. They did not specify the standard of review
they were employing but intimated that it
was minimal scrutiny.
iv. Weinberger v. Wiesenfeld, the Court voided a Social Security Act
provision that entitled a widow, but not a widower, to benefits based on
the earning of the deceased spouse.
1. The archaic and overboard premise of the provision was that male
workers earnings are vital to the support of their families, while
the earnings of females do not significantly contribute to their
families support.
v. Stanton v. Stanton, the Court applied similar reasoning to a Utah law that
required parental support of male offspring to age 21 but of female
children only to age 18.
vi. Kahn v. Shevin, the Court upheld a property tax exemption for widows,
but not widowers, on the ground that the distinction was rationally
related to the greater finical problems of widows.
vii. Craig v. Brown
1. Facts: Oklahoma law prohibited the sale of 3.2% beer to males
under the age of 21 and to females under the age of 18.
2. Issue: Whether such a gender-based differential constitutes a
denial to males 18-20 years of age of equal protection.
3. Holding:
4. Reasoning: Brennan
a. To withstand constitutional challenge, such classifications
by gender must serve important governmental objectives
and must be substantially related to achievement of those
objectives.
i. Clearly he protection of public health and safety
represents an important function of state and local
government. However, appellees’ statistics cannot
support the conclusion that the gender-based
distinction closely serves to achieve that objective
and therefore the distinction cannot withstand
equal protection challenges.
ii. The showing offered by the appellees does not
satisfy us that sex represents a legitimate, accurate
proxy for the regulation of drinking and driving.
5. Concurrence: Powell
a. Candor compels the recognition that the relatively
deferential rational basis standard of review normally
 applied takes on a sharper focus when we address a
gender-based classification.
b. The question turns to whether the classification bears a
fair and substantial relation to the objective of highway
safety.
i. The statistics tend generally to support the view
that young men drive more, possibly are inclined to
drink more, and are involved in more accidents
than young women.
1. This does not bear a fair and substantial
relation.
6. Concurrence: Stevens
a. There is only one Equal Protection Clause.
i. It does not direct courts to apply one standard of
review in some cases and a different standard in
other cases.
1. What has become known as the two-tiered
analysis of equal protection. Claims does
not describe a completely logical method of
deciding cases, but rather is a method the
Court has employed to explain decision that
actually apply a single standard in a
reasonably consistent fashion.
b. Even assuming some slight benefit, it does not seem to me
that an insult to all of the young men of the State can be
justified by visiting the sins of the 2% on the 98%.
7. Dissent: Rehnquist
a. The Court errors in two ways:
i. First that the level of scrutiny should be
heightened; and
ii. Second, that classification by gender must serve
important governmental objectives and must be
substantially related to achievement of those
objectives.
b. There is no suggestion in the Court’s opinion that males in
this gage group are in any way peculiarly disadvantaged,
subject to systematic discriminatory treatment, or
otherwise in need of special solicitude from the courts.
viii. Notes
1. Intentional Discrimination.
a. As in cases that call for strict scrutiny, a plaintiff in a
constitutional sex discrimination suit must prove that the
sex classification is intentional.
 i. Disparate impact by itself is not sufficient.
Personnel Administrator v. Feeney.
2. Actual Purpose
a. In assessing whether a state’ purpose is sufficiently
important to withstand intermediate scrutiny, courts insist
upon determining the actual purpose of the classification.
i. The conjectural post hoc purposes that suffice for
minimal scrutiny are not adequate in intermediate
scrutiny.
b. Mississippi University for Women v. Hogan – struck down a
public university’s practice of admitting only women to its
nursing school .
i. Although Mississippi asserted that its policy
substantially served an important state goal of
compensating for discrimination against women in
public education, the Court held that although
State recited a benign, compensatory purpose, it
failed to establish that the alleged objective is the
actual purpose underlying the discriminatory
classification.
ix. Michael M. v. Superior Court of Sonoma County
1. Facts: California law defines unlawful sexual intercourse as an act
of sexual intercourse accomplished with a female not the wife of
the perpetrator, where the female is under the age of 18 years.
The statue thus make men alone criminally liable for the act of
sexual intercourse. The California Super Court held that the law
discriminates on the basis of sex because only females may be
victims, and only males may violate the section. The court then
subjected the classification to strict scrutiny and found that the
classification was supported not by mere social convention but by
the immutable physiological fact that it is the female exclusively
who can become pregnant. The California court concluded that
the State has a compelling interest in preventing such
pregnancies.
2. Issue: Whether California’s statutory rape law violates equal
protection.
3. Holding:
a. The California legislature sought to prevent illegitimate
teenage pregnancies, and the State has a strong interest in
preventing such pregnancy.
i. A criminal sanction imposed solely on males thus
serves to roughly equalize the deterrents on the
sexes.
4. Concurrence: Stewart
 a. Equal protection does not mean that the physiological
differences between men and women must be
disregarded.
i. While those differences must never be permitted
to become a pretext for invidious discrimination,
the Constitution surely does not require a State to
pretend that demonstrable differences between
men and women do not really exist.
5. Dissent: Brennan, White & Marshall
a. California vigorously asserts that the important
governmental objective to be served by its law is the
prevention of teenage pregnancy.
i. California has the burden of proving that there are
fewer teenage pregnancies under its gender-based
statutory rape law than there would be if the law
were gender-neutral.
1. To meet this burden, the State must show
that because its statutory rape law punishes
only males, and not females, it more
effectively deters minor females from
having sexual intercourse.
b. There are at least tow serious flaws in the Stat’s assertion
that law enforcement problems created by a gender-
neutral statutory rape law would make such a statue less
effective than a gender-based statute in deterring sexual
activity.
i. First, there are now at least 37 states that have
enacted gender-neutral statutory rape laws.
1. California has introduced no evidence that
those states have been handicapped by the
enforcement problems the plurality finds so
persuasive.
2. Surely, if those States could provide such
evidence, we might expect that California
would have introduced it.
ii. Second flaw in the State’s assertion is that even
assuming that a gender-neutral statute would be
more difficult to enforce, the State has still not
shown that those enforcement problems would
make such a statute less effective than a gender-
based statute in deterring minor females from
engaging in sexual intercourse.
6. Dissent: Stevens
 a. Even if there actually is some speculative basis for treating
equally guilty makes and females differently, and any such
speculative justification would be outweighed by the
paramount interests in evenhanded enforcement of the
law.
i. A rule that authorizes punishment of only one of
two equally guilty wrongdoers violates the essence
of the constitutional requirement that the
sovereign must government impartially.
x. Rosker v. Goldberg
1. Facts:
2. Issue: Whether the Military Selective Service Act violates equal
protection in authorizing the President to require the registration
of males and not females.
3. Holding:
4. Reasoning:
a. No one could deny that the Government’s interest in
raising and supporting armies is an important government
interest.
i. Since women are excluded from combat Congress
concluded that they would not be needed in the
event of a draft, and therefore decided not to
register them.
ii. The exemption of women from registration is not
only sufficiently but also closely related to
Congress’ purpose in authorizing registration.
5. Dissent: Marshall and Brennan
a. The Government task in this case is to demonstrate that
excluding women from registration substantially furthers
the goal of preparing for a drat of combat troops. The
Government must show that registering women would
substantially impede its efforts to prepare for such a draft.
i. The Government cannot meet this burden without
showing that a gender-neutral statute would be a
less effective means of attaining this end.
ii. The Government makes no claim that preparing for
a draft of combat troops cannot e accomplished
just as effectively by registering both men and
women but drafting only men if only men turn out
to be needed.
1. Under the current scheme, large subgroups
of the male population who are ineligible
for combat because of physical handicaps
 or conscientious objector status are
nonetheless required to register.
b. The Court’s analysis rests on a premise that is
demonstrably false.
i. The majority simply assumes that registration
prepares for a draft in which ever draftee must be
available for assignment to combat.
1. But Defense Department indicated that
conscripts would be needed to staff a
variety of support positons having no
combat eligibility, and which therefore
could be filled by women.
xi. Notes:
1. Real Differences
2. Sex-Based Juror Challenges.
a. In J.E.B. v. Alabama ex rel. T.B., the Court ruled that
preemptory challenges of jurors on the basis of their sex
were unconstitutional.
xii. United States v. Virginia
1. Facts:
2. Issue: Does Virginia’s exclusion of women from the educational
opportunities provided by VMI deny to women capable of all the
individual activities required of VMI cadet’s equal protection? If
VMI’s unique situation as Virginia’s sole single-sex public
institution of higher education offends the Constitutions equal
protection principle, what is the remedial requirements?
3. Holding:
4. Reasoning: Ginsburg
a. Parties who seek to defend gender-based government
action must demonstrate an exceedingly persuasive
justification for that action…The burden of justification is
demanding and it rests entirely on the State.
i. The State must show 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.
ii. The justification must be genuine not hypothesized
or invented post hoc in responses to litigation.
b. Virginia offers two justifications in defense of WMI’s
exclusion of women.
i. First, single-sex education contributes to diversity
in educational approaches.
 ii. Second, the unique VMI method of character
development and leadership training would have
to be modified were VMI to admit women.
c. Single-sex education affords pedagogical benefits to at
least some students and that reality is uncontested in this
litigation.
i. Virginia has not shown that VMI was established,
or has been maintained, with a view to
diversifying…educational opportunities within the
State…A tenable justification must describe actual
state purposes, not rationalizations for actions in
fact differently grounded.
ii. The Court finds no persuasive evidence in this
record that VMI’s male-only admission policy is in
furtherance of a state policy of diversity.
1. A purpose genuinely to advance an array of
education options is not served by VMI’s
historic and constant plant – a plant to
afford a unique educational benefit only to
males.
d. Virginia next argues that VMI’s adversative method of
training provides educational benefits that cannot be
made available, unmodified, to women.
i. Alterations to accommodate women would
necessarily be radical woman so drastic, Virginia
asserts, as to transform, indeed destroy, VMI’s
program.
ii. Neither sex would be favored by the
transformation, Virginia maintains: Men would be
deprived of the unique opportunity currently
available to them; women would not gain that
opportunity because their participation would
eliminate the very aspects of the program that
distinguish VMI from other institutions of higher
education in Virginia.
1. State actors controlling gages to
opportunity may not exclude qualified
individuals based on fixed notions
concerning the roles and abilities of males
and females.
a. Virginia has fallen far short of
establishing the exceedingly
persuasive justification that must be
 the solid base for any gender-
defined classification.
e. A remedial decree must closely fit the constitutional
violation; it must be shaped to place person
unconstitutionally denied an opportunity or advantage in
the position they would have occupied in the absence of
discrimination.
i. The constitutional violation here is the categorical
exclusion of women from an extraordinary
educational opportunity afforded men…Virginal
chose not to eliminate, but to leva untouched,
VMI’s exclusionary policy.
1. Virginia’s remedy affords no cure at all for
the opportunities and advantages withheld
from women who want a VMI education
and can make the grade…Virginia’s remedy
does not match the constitutional violation;
the State has shown no exceedingly
persuasive justification for withholding
from women qualified for the experience
premier training of the kind VMI affords.
5. Concurring: Rehnquist
a. To withstand constitutional challenge, classifications by
gender must serve important governmental objectives and
must be substantially related to achievement of those
objectives.
6. Dissent: Scalia
a. There is no such thing as intermediate scrutiny
b. This should be rationale basis.
xiii. Notes
1. The Scope of the VMI Case
2. Real Difference, Stereotypes, and the Standard of Review After
WMI. In Nguyen v. Immigration and Naturalization Service, the
Supreme Court upheld 8 U.S.C. § 1409, which provides that a child
born abroad and out of wedlock acquires at birth the nationality
status of an American citizen mother who meets a residency
requirement, but when the father is the citizen parent §
1409(a)(4) makes American citizenship dependent on the father
takin one of three actions before the child turns 18: legitimization,
a declaration of paternity under oath by the father, or a court
order of paternity.
a. The Court applied intermediate scrutiny due to the
differential treatment based on the sex of the parent and
cited VMI for this standard of review. The Court
 concluded that the sex classification at issue was
substantially related to two important government
objectives.
i. The first governmental interest is the important of
assuring that a biological parent-child relationship
exists. The second important governmental
interest furthered in a substantial manner by the
scheme is ensuring that the child and the citizen
parent have some demonstrated opportunity or
potential to develop a relationship that consists of
the real, everyday ties that provide a connection
between child and citizen parent and in turn the
US.
ii. Justice O’Connor, joined by Justices Souter,
Ginsburg, and Breyer, dissented, noting that the
majority casually dismisses the relevance of
available sex-neutral alternatives and arguing that
the government’s asserted ends could be
adequately achieved by reliance on modern DNA
testing. The relationship between the statute and
the government’s goal was grounded in biological
difference but instead in a stereotype. The
hallmark of a sex stereotype was reliance upon a
simplistic outdated assumption that sex is an
adequate proxy for other, more germane bases of
classifications.
f. Fundamental Rights: Strict Scrutiny Redux
i. Introduction:
1. San Antonio Independent School District v. Rodriguez
a. Facts: Mexican-American parents (plaintiffs) whose
children attend schools in the Edgewood Independent
School District, brought a class action suit (with Rodriquez
as the class representative) in district court against the San
Antonio Independent School District (defendant). The suit
was brought on behalf of schoolchildren throughout the
state who were members of minority groups or who were
poor and resided in school districts financed by a low
property tax base. In the late 1940s, the Texas legislature
sought to mitigate the inequality of resources among
school districts created by differences in property tax
bases. The legislature enacted the Texas Minimum
Foundation School Program which called for state and
local contributions to a fund earmarked specifically for
teacher salaries, operating expenses, and transportation
 costs. Individual school districts were responsible for
providing twenty percent of the revenue for this fund and
did so by imposing property taxes on citizens residing
within the districts. The property values in Rodriguez’s
district were far lower than property values in other
districts, making the amount collected to educate
Rodriguez’s children significantly less per pupil than that
allocated for the education of children in more affluent
districts. Thus, Rodriguez alleged that the disparity in
public education funding and quality of education among
school districts violated their rights under the Equal
Protection Clause of the Fourteenth Amendment to the
Constitution. The district court held the Texas financing
scheme was unconstitutional, and the San Antonio
Independent School District appealed to the United States
Supreme Court.
b. Issue: Whether a system of financing public education
based on property taxes that results in significant
disparities in funding among school districts violates the
Fourteenth Amendment rights of children attending
schools in less-affluent districts.
c. Holding and Reasoning: Powell
i. No. The analysis turns on whether education itself
is either explicitly or implicitly guaranteed as a right
in the Constitution since it is not explicitly
mentioned therein.
1. There is no implicit basis for holding
education is so protected.
ii. Rodriguez’s argument that education is essential to
the effective exercise of First Amendment
freedoms and to intelligent utilization of the right
to vote also is rejected.
1. No evidence has been offered that the
present levels of educational expenditures
in Texas provide an education falling short
of fulfilling these purposes.
2. Thus, the Texas funding system should not
be subjected to strict scrutiny, but rather
should be analyzed in terms of whether it
bears a rational relationship to a legitimate
state purpose. Applying this standard to the
Texas funding system, no reasonable less
discriminatory alternatives exist for
 collecting revenue for public education in
the state.
3. Additionally, the formation of any such
alternatives raise significant and difficult
questions of educational policy; a topic best
saved for the expertise of the Texas state
legislature. The decision of the district court
is reversed.
iii. Rule: Education is not recognized as a fundamental
right under the Fourteenth Amendment to the
Constitution, and thus a state regulation impacting
the right to education should be analyzed under
rational basis review to determine if it bears a
rational relationship to a legitimate state purpose.
iv. Concurrence: Stewart
1. The system of public education created by
the Texas financing scheme is both chaotic
and unjust; however, nothing in the text of
the Constitution supports a fundamental
right to education.
2. Had the majority agreed with Rodriguez
that the system violates the Equal
Protection Clause, it would constitute a
strong departure from the Court’s prior
jurisprudence interpreting the application
of that clause.
3. The Equal Protection Clause has never been
found to create fundamental rights. Rather,
it is always used in the Court’s
jurisprudence as a provision to measure the
validity of classifications made by the
government.
v. Dissent: Brennan
1. The Texas statutory scheme is devoid of any
rational basis and thus violates the Equal
Protection Clause.
2. Additionally, the majority’s assertion that a
right is deemed “fundamental” for purposes
of the Equal Protection Clause only if it is
“explicitly or implicitly guaranteed by the
Constitution” is misguided.
a. A right may be considered
“fundamental” solely on the basis of
 its importance in effectuating other
guaranteed constitutional rights.
b. The right to education is inextricably
linked to the right to participate in
the electoral process and to the
rights of free speech and association
guaranteed by the First
Amendment.
vi. Dissent: White
1. The conditioning of school funding on
property taxes within each district
perpetuates a system of inequality among
the districts.
2. Without fundamentally changing the
composition of districts to equalize
property values, the Texas system of
financing education will never represent a
meaningful opportunity for low-income
school districts to improve the quality of
education for their children.
3. Thus, the scheme is unjustified as it does
not bear a rational relationship to Texas’
asserted goal of improving the quality of
education across the state.
4. Justice Thus the scheme violates the Equal
Protection Clause of the Fourteenth
Amendment.
vii. Dissent: Marshall
1. The practical effect of the majority’s
opinion is to permit a state to
constitutionally vary the quality of
education which it offers its children in
accordance with the amount of taxable
wealth located in the school districts within
which they reside.
2. This is a marked departure from the Court’s
prior jurisprudence establishing the
unconstitutionality of state educational
financing schemes dependent upon taxable
local wealth.
3. The majority’s decision is a retreat from the
Court’s historic commitment to ensuring
the equality of educational opportunities
for children for the purpose of helping them
 realize their full potential as United States
citizens.
d. Plyler v. Doe
i. Facts: May 1975, the Texas legislature revised its
education laws to withhold from local school
districts any state funds for the education of
children who were not legally admitted into the
United States. The 1975 revision also authorized
local school districts to deny enrollment in their
public schools to children not legally admitted to
the country.
ii. Issue: Whether, consistent with the Equal
Protection Clause of the Fourteenth Amendment,
Texas may deny to undocumented school-age
children the free public education that it provides
to children who are citizens of the United States or
legally admitted aliens?
iii. Holding and Reasoning: Brennan
1. No. A state may not deny free public
education to children not legally admitted
into the United States without violating the
Equal Protection Clause.
2. While the judiciary must respect the
political decisions of Congress, especially in
the area of immigration, states have no
similar authority in regard to the
classification or discrimination of aliens.
However, states do have the authority to
take action in regards to undocumented
aliens if it complies with federal goals as
well as furthers a legitimate state goal.
There is no evidence of any federal policy
that supports the denial of education to the
children of undocumented aliens.
3. A heightened level of judicial review should
be applied in cases dealing with the children
of undocumented immigrants.
a. Children of immigrants did not
choose to enter the country
unlawfully, and depriving them of an
education will contribute to a large
disenfranchised underclass of
undocumented aliens. Therefore,
the law will only be held
 constitutional if it furthers a
substantial goal of the state.
b. There are three possible state goals,
yet none of them are substantial
enough to validate the state’s
discrimination.
c. There is no evidence that denying
public education to undocumented
aliens will help stop undocumented
immigrants from moving to Texas.
d. There is also no evidence that
denying these children an education
will increase the quality of public
education in the state because the
children of aliens require a
disproportionate amount of
educational resources.
4. Finally, the argument that children of
undocumented aliens are less likely to
remain in the state is without merit.
a. Many undocumented children will
become lawful residents or citizens,
and the state never has assurances
that the beneficiaries of its public
education system will stay in the
state.
b. Therefore, Texas is not furthering a
substantial goal of the state by
denying a public education to
children not legally admitted into
the country.
iv. Concurrence: Marshall
1. The majority should have stressed that
every child in the country has a
fundamental right to a public education.
v. Concurrence: Blackmun
1. Denying an entire class of aliens a public
education creates a permanent class of
second-class citizens.
2. The Texas statute in question is
overinclusive because it is impossible for
the state to determine which aliens will
eventually be deported.
vi. Concurrence: Powell
 1. The majority properly uses a heightened
level of judicial scrutiny.
2. While the states are understandably
frustrated with the amount of illegal aliens
within their borders, creating a subclass of
uneducated people harms both the states
and the nation as a whole.
vii. Dissent: Burger
1. The court is attempting to make up for
Congress’ inaction in the area of illegal
immigration. However, that decision not to
act is a political one, and the judiciary has
no right to make political decisions.
2. Heightened judicial scrutiny is only
warranted when the classification affects a
suspect class or a fundamental right.
a. Illegal aliens are not a suspect class
and education is not a fundamental
right, as the majority appears to
acknowledge.
i. Therefore, rational basis
review should be applied.
The state has a legitimate
state purpose in conserving
its resources, and the
classification in question is
rationally related to that
goal.
3. This is similar to the federal government’s
constitutional denial of public benefits to
illegal aliens.
g. Voting
h.
i. Access to the Courts
j. Ends: What purposes Are Not Legitimate?
i. United States Department of Agriculture v. Moreno
1. Facts: In 1964, Congress passed the Food Stamp Act to govern and
reform its food stamp. Section 3(e) of the Act excluded from
participation in the food stamp program any household
containing an individual who was unrelated to any other member
of the household. Moreno lived with Sanchez, a person to whom
she was not related, and Sanchez’s three children. Moreno met all
income and other requirements for receiving food stamps,
however, her benefits were denied under § 3(e) of the Food
 Stamp Act. Sanchez’s benefits were also denied despite otherwise
qualifying. Moreno brought suit against the United States
Department of Agriculture in federal district court seeking to
enjoin enforcement of the act. The district court held that § 3(e)
violated the Due Process Clause of the Fifth Amendment.
2. Issue: Does a law that terminates food stamp benefits for a class
of persons comprised of unrelated people living in the same
households violate the Due Process Clause of the Fifth
Amendment?
3. Holding and Reasoning: Brennan
a. Yes. The practical effect of § 3(e) is to create two distinct
classes of people: those living in households in which all
members re related to each other; and those living in
households where at least some members are unrelated.
b. For this legislative classification of individuals to be upheld,
it would have to be relationally related to a legitimate
governmental interest.
i. In the present case, Congress stated that the
purpose of the Act was to stimulate the agricultural
economy by encouraging people to purchase farm
surpluses.
ii. The governing of relationships within private
homes bears no rational relation to this stated
purpose.
1. However, because legislative enactments
do not necessarily have to be sustained by
the actual purpose of Congress, an analysis
is undertaken to see if other purposes exist
that can constitutionally sustain the statute.
c. In examining the legislative history surrounding the Act,
Congress primarily sought to exclude “hippies” and “hippie
communes” from participating in the food stamp program.
i. However, this purpose is unconstitutional because
the Equal Protection Clause prevents
ii. Congress from passing legislation targeting a
particular, unpopular group.
iii. The USDA argues that the legislature could have
reasonably found that households composed of
unrelated members are more likely to abuse the
program, and thus could have passed legislation
that is rationally related to the legitimate purpose
of preventing fraud.
d. The Act in question is not targeted at people identified as
likely to “abuse the program,” but rather discriminates
 against an entire class of persons that are so desperately
in need of aid that they cannot even afford to alter their
living arrangements to retain program eligibility.
e. The Act’s classification of this group of people as ineligible
for assistance lacks any rational basis. The decision of the
district court is affirmed.
4. Rule: A state regulation that arbitrarily creates two classes of
persons and deprives one class of government benefits violates
the Equal Protection Clause and Due Process Clause of the Fifth
Amendment because it is based on a mere legislative preference
for one class that is not rationally related to a legitimate state
purpose.
ii. Romer v. Evans
1. Facts: Several Colorado municipalities passed ordinances banning
discrimination based on sexual orientation in housing,
employment, education, public accommodations, health and
welfare services, and other transactions and activities. In response
to these ordinances, Colorado voters passed Amendment 2 which
prohibited all governmental intervention designed to protect the
status of persons based on their sexual orientation, conduct,
practices, or relationships. Evans (plaintiff) represented a class of
aggrieved homosexual persons and municipalities in Colorado and
brought suit in Colorado state court against Romer (defendant),
the Governor of Colorado, on the grounds that Amendment 2 was
unconstitutional. The trial court enjoined enforcement of
Amendment 2. The Colorado Supreme Court affirmed on the
grounds that Amendment 2 was subject to strict scrutiny under
the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution because it interfered with the
fundamental right of gays and lesbians to participate in the
political process. The United States Supreme Court granted
certiorari.
2. Issue: May a state enact a law that prohibits state and local
governments from enacting anti-discriminatory legislation to
protect homosexual persons without violating the Equal
Protection Clause of the Fourteenth Amendment?
3. Holding and Reasoning:
a. No. The State of Colorado argued that Amendment 2 is not
unconstitutional because it put gays and lesbians in the
same position as all other persons.
b. The Colorado Supreme Court found that the effect of
Amendment 2 repeals existing statutes, regulations, and
policies that bar discrimination based on sexual
orientation.
 c. Additionally, Amendment 2 functions to ensure that no
similar laws protecting gays and lesbians are ever enacted.
d. Thus, the Amendment does treat homosexual persons
differently from the population as a whole because it
withdraws from them, but no other persons, specific legal
protection from discrimination, and forbids the
reinstatement of laws and policies which would protect
their interests.
i. The effects of the Amendment are far-reaching and
prevent the enactment of policies in both the
public and private sectors that would protect gays
and lesbians from discriminatory treatment in
accessing basic services, which is a basic freedom
taken for granted by most other persons.
e. For a law to pass constitutional muster under the
Fourteenth Amendment it must not burden a fundamental
right or target a suspect class, and it must bear a rational
relation to a legitimate state purpose.
f. Given the understanding of the true effect of Amendment
2, this law fails constitutional scrutiny under the
Fourteenth Amendment.
i. Amendment 2 targets the suspect class of
homosexual persons and is based on animosity
towards this group such that the law bears no
rational relation to any legitimate state purpose.
ii. Amendment 2 is both too narrow and too broad to
be constitutional.
iii. This is because the law defines an entire group of
people based on a single trait (sexual orientation)
and discriminates against them across the board on
all aspects of their rights.
iv. Amendment 2 is invalidated as a violation of the
Equal Protection Clause because such a targeted
and injurious denial of basic rights can bear no
rational relation to a legitimate state interest even
under a very deferential standard of judicial
review.
4. Rules: A state law that neither burdens a fundamental right nor
targets a suspect class of persons will be upheld under the Equal
Protection Clause of the Fourteenth Amendment if it bears a
rational relation to legitimate state purpose.
k. Enhanced Minimal Scrutiny: Is the Problem Mens, Ends, or Both?
i. City of Cleburne, Texas v. Cleburne Living Center, Inc.
1. Facts: In 1980, the Cleburne Living Center (Center) (plaintiff) filed
an application for a special use permit with the City of Cleburne,
Texas (City) (defendant). The Center sought a permit to build a
residential facility for mentally disabled men and women. The
facility would house up to thirteen persons, who would be
supervised at all times. The City denied the permit application,
and the Center brought suit in federal district court challenging
the denial. The district court upheld the denial. The court of
appeals reversed, finding that the mentally disabled were a quasi-
suspect class of persons and thus intermediate scrutiny should be
applied to the City’s denial of the permit application. It invalidated
the denial as not furthering an important government purpose.
The United States Supreme Court granted certiorari.
2. Issue: Whether a city’s denial of a permit for a group home for
mentally disabled persons violated the Equal Protection Clause of
the Fourteenth Amendment, and whether the review of such a
denial required intermediate scrutiny.
3. Holding and Reasoning: White
a. Yes and no. The court of appeals erred in applying
heightened scrutiny to the denial of the permit
application.
b. The mentally disabled are not a quasi-suspect class, and
thus rational basis review of the City’s decision is
appropriate.
i. Firstly, it is undeniable that mentally disabled
persons require special care for functioning in the
everyday world, so legislative judgments are likely
to be rational and should not be scrutinized more
closely.
ii. Secondly, on a national scale, federal lawmakers
have shown great appreciation for the plight of the
mentally disabled and enacted significant
legislation prohibiting discrimination against them.
Applying heightened scrutiny and requiring the
legislature to show that these efforts are
substantially related to an important governmental
purpose might actually discourage the legislature
from continuing to act to protect the mentally
disabled.
iii. Thirdly, the existence of so many regulations make
it clear that the mentally disabled are not politically
powerless, but have already been able to attract
the attention of lawmakers to provide for their
rights.
 iv. Fourthly, finding the mentally disabled a quasi-
suspect class would pose problems in the future for
classifying other groups as such that possibly share
some but not all characteristics with mentally
disabled persons as a group. For these reasons,
rational basis review is appropriate for any
legislative determinations affecting mentally
disabled persons.
c. The City does not require a special use permit for
apartment buildings, multiple dwellings, boarding and
lodging houses, fraternity or sorority houses, dormitories,
hotels, hospitals, sanitariums, nursing homes for
convalescents or the elderly, private clubs, and fraternal
orders.
i. In contrast, the City requires a special use permit
for a group home for mentally disabled persons.
This difference in treatment is irrelevant because
the Center’s proposed home would not threaten
legitimate interests of the City in a way that other
permitted uses would not.
1. The City’s arguments that the home would
create negative attitudes about the
mentally disabled in the community, or that
it would elicit harassment of residents from
children in a nearby school, are rejected as
this concern is speculative and thus
irrelevant.
2. The City’s concern that the home is located
on a floodplain is not sufficient for denying
the permit for the home because other
similar buildings are located there.
3. Finally, the City’s concerns about the size of
the home and the amount of residents are
also rejected because if the residents were
not mentally disabled, the city would have
no objections.
4. Thus, there is no rational basis for the City
to conclude the group home would impact
its legitimate interests, and therefore the
denial of the special use permit violates the
Equal Protection Clause.
4. Concurrence: Stevens
a. Equal Protection Clause jurisprudence more accurately
reflects a continuum of judicial responses ranging from
 strict scrutiny to rational basis review, rather than a
system of three clearly-defined standards.
b. The complicated facts of individual cases do not fit neatly
into the existing standards, and a “rational basis” for
review is preferential.
c. The rational basis test, when properly and thoughtfully
applied, is adequate for deciding all cases implicating the
rights of various classes of persons. Heightened scrutiny is
unnecessary.
5. Concurrence/Dissent: Marshall
a. Mental retardation should not be used as a proxy for
invalidating the rights of an entire group of persons.
Mental disabilities affect different people in different
ways, and it is unfair for governments to make regulations
which discriminate against all mentally disabled
individuals.
b. The majority is correct in saying that the Equal Protection
Clause requires attention to the capacities and needs of
mentally disabled persons as individuals.
c. However, the majority’s determination that the case can
be sufficiently decided with rational basis review, and
denying that any action by the city requires heightened
scrutiny, is incorrect.
d. Heightened scrutiny should have been applied to the case,
and there should have been a better job in investigating
and articulating the facts of the city’s actions to justify this
result.
e. The majority erred in applying rational basis review in light
of the present facts which suggest the need for heightened
scrutiny.
6. Rule: The mentally disabled are not a quasi-suspect class and thus
any legislative regulations affecting their rights are subject to
rational basis review and not intermediate scrutiny.
IV. Chapter IX: Free Expression of Ideas
a. Overview of Free Expression
i. Rationales for Free Expression
1. The basic divide in free speech is between government
regulations that regulate speech on the basis of tis content and
those that regulate speech on a content-neutral basis.
a. A law prohibits all political speech is the public streets
regulates the speech on the basis of its content.
b. A law prohibiting all speech in the public streets that is
amplified by bullhorns is a content-neutral regulation.
b. Overbreadth, Vagueness, and Prior Restraints
i. Overbreadth
1. An overbroad statute regulates constitutionally unprotected
conduct by also regulating much constitutionally protected
conduct.
2. Governments may not use means which swept unnecessarily
broadly and thereby invade the area of protected freedoms in
order to control behavior legitimately susceptible to government
control.
3. Broadrick v. Oklahoma
a. Facts: Oklahoma law prohibits the state’s classified civil
servants from soliciting for political contributes and taking
part in the management or affairs of any political party or
in any political campaign, except to exercise his right as a
citizen privately to express his opinion and to cast his vote.
b. Issue:
c. Holding:
d. Reasoning:
i. Embedded in the traditional rules governing
constitutional adjudication is the principle that a
person to whom a statute may constitutionally be
applied will not be heard to challenge that statue
on the ground that it may conceivably be applied
unconstitutionally to others, in other situations not
before the Court.
ii. Statutes attempting to restrict or burden the
exercise of First Amendment rights must be
narrowly drawn and represent a considered
legislative judgment that a particular mode of
expression has to give way to other compelling
needs of society.
iii. An overbroad statute is totally forbidden until and
unless a limiting construction or partial invalidation
so narrow it as to remove the seeming threat or
deterrence to constitutionally protected
expression.
iv. Where conduct and not merely speech is involved,
we believe that the overbreadth of a statue must
not only be real, but substantial as well, judged in
relation to the statute’s plainly legitimate sweep.
4. Notes
a. Substantial Overbreadth
b. Overbreadth Claims by Speakers of Protected Speech
i. Schaumbeerg v Citizens for a Better Environment –
the Court voided an ordinance that banned public
 in-person solicitation of money by charitable
organization that did not use at least 75 percent of
their contributions for their charitable purpose.
ii. Brockett v. Spkane Arcades, Inc. – A Washington
law prohibited obscenity, defined it to include
material that incites lascivious or lust, a definition
that swept within obscenity material that did not
appeal to the prurient interest in sex. The Court
voided the law only as applied to Spokane Arcades,
even though Spokane Arcades had challenged the
law as facially overbroad. The normal rule is that
partial rather than facial invalidation, is the
required course.
c. Overbreadth After Broadrick. In Board of Airport
Commissioners of Los Angeles v. Jews for Jesus, the Court
held that a regulation adopted by the LA Airport
Commission that forbade First Amendment activities
within the Central Terminal Area at LAX was overbroad
and thus facially invalid.
d. The Scope and Limits of Overbreadth. The Court has
recognized that overbreadth challenge may be made with
respect to laws that inhibit the right to travel; infringe the
right to an abortion; and exceed Congress’s power to
enforce the substantive provisions of the Fourteenth
Amendment.
i. Sabri v. United States, the Court rejected a
challenged to the facial validity of a federal statute
that makes bribery of official of state and local
government that receive at least $10,000 in federal
funds a federal crime.
ii. Gonzales v. Carhart, cast doubt on the contented
vitality of overbreadth challenged of abortion
regulations.
iii. Professor David Gans suggests that facial
challenges operate as a constitution prophylaxis
and are desirable in three broad circumstances; (1)
whenever a chilling effect on constitutional right
would exist without entertaining a facial challenge;
(2) when statues confer excessive discretion upon
official, raising the risk that invalid exercise of
discretion might go undetected in as-applied
challenges; and (3) when statues inflict server
stigmatic injury that cannot be readily eradicated
by the glacial pace of as applied challenges.
 ii. Vagueness
1. A law is unconstitutionally vague if persons of common
intelligence must necessarily guess at its meaning and differ as to
its application.
iii. Prior Restraints
1. Prior restrains of speech are among the most disfavored of speech
restrictions and are presumptively void.
2. Licensing
a. Licensing requires speaker to obtain the permission of the
government before they speak.
3. Injunctions
a. An injunction of speech before it occurs is a powerful
weapon. Only the most compelling reasons will support
the issuance of an injunction restraining speech in
advance.
b. Near v. Minnesota
i. Facts: Minnesota law provides for the abatement,
as a public nuisance, of a malicious, scandalous and
defamatory newspaper, magazine or other
periodical.
ii. Issue: Whether such a statute is consistent with the
conception of the liberty of the press as historical
conceived and guaranteed.
iii. Holding:
iv. Reasoning:
1. The object of the statue is not punishment
but suppression of the offending
newspaper.
2. It is the chief purpose of the guaranty to
prevent previous restraints upon
publication.
3. The fat that the liberty of the press may be
abused by miscreant purveyors of scandal
does not make any the less necessary the
immunity of the press from previous
restraint in dealing with official misconduct.
c. Notes
i. The Vice of Injunctions
1. Chilled Speech
2. The collateral bar rule. The collateral bar
rule has strongly intimidating effect in
providing that a person who violates an
injunction may be punished for the
 violation even if it turned out later that the
injunction was invalid.
ii. Interest Adequate to Justify Prior Restrain.
1. National Security
2. Catastrophic injury.
iii. Injunctive Restraints in the Interest of a Fair Trial.
c. Content Based Regulation of Speech
i. Incitement of Immediate Crime
1. Clear and Present Danger
a. Schenck v. United States
i. Facts:
ii. Issue:
iii. Holding:
iv. Reasoning:
1. The question in every case is whether the
words used are used in such circumstances
and are sf such a nature as to create a clear
and present danger that they will bring
about the substantive evils that Congress
has a right to prevent.
b. Abrams v. United States
i. Facts:
ii. Issue;
iii. Holding:
iv. Reasoning:
1. The leaflets demonstrated an intent to
hinder production of war material, ad could
not be characterized as simple expressions
of political opinion.
c. Notes
i. Clear and Present Danger
2. Criminal Anarchy and Communist: Clear and Not So Present
Danger
a. Gitlow v. New York
i. 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.
 ii. Issue: Did the statute prohibiting such activity
deprive the Petitioner of his First Amendment
constitutional right to freedom of expression.
iii. Holding: he 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.
iv. Reasoning:
1. The government may suppress or punish
speech that directly advocates the unlawful
overthrow of the government and it upheld
the constitutionality of the state statute at
issue, which made it a crime to advocate
the duty, need, or appropriateness of
overthrowing government by force or
violence.
v. Dissent
1. it was still the appropriate test to employ in
judging the limits of freedom of expression.
2. Joined by Brandeis, he argued that Gitlow
presented no present danger because only
a small minority of people shared the views
presented in the manifesto and because it
directed an uprising at some "indefinite
time in the future."
3. He responded to Sanford's kindling
metaphor that "eloquence may set fire to
reason, but, whatever may be thought of
the redundant discourse before us, it had
no chance of starting a present
conflagration.
b. Notes
i. The Substance of Clear and Present Danger
ii. Later Developments
1. In De Jonge v. Oregon, the Court ruled that
mere participation in an organization
devoted to advocating criminal syndicalism
could not be made a crime.
iii. The Cold War Communists and the Smith Act
1. Dennis v. US, the Court upheld the
convictions of the chief leaders of the
American Communist Party for violated the
 Smith Act, which prohibited the knowing
advocacy, or attempted advocacy, of the
duty, necessity, desirably, or properties of
overthrowing any government in the US by
force or violence.
3. The Contemporary Standard for Incitement
a. Brandenburg v. Ohio
i. Facts: he Ohio Criminal Syndicalism Act (the “Act”)
made it illegal to advocate “crime, sabotage,
violence or . . . terrorism as a means of
accomplishing industrial or political reform.” It also
prohibited “assembling with any society, group, or
assemblage or persons formed to teach or
advocate the doctrines of criminal syndicalism. The
Defendant, a leader in the Ku Klux Klan, made a
speech promoting the taking of revenge against the
government if it did not stop suppressing the white
race and was therefore convicted under the Act.
ii. Issue: Did the statute, prohibiting public speech
that advocated certain violent activities, violate the
defendant’s right to free speech under the First
and Fourteenth Amendments of the Constitution.
iii. Holding: The U.S. Supreme Court reversed
Brandenburg's conviction, holding that government
cannot constitutionally punish abstract advocacy of
force or law violation.
iv. Reasoning:
1. The mere abstract teaching of the moral
propriety or even moral necessity for a
resort to force and violence is not the same
as preparing a group for violent action and
steeling it to such action.
v. Concurring: Black
1. The clear and present danger doctrine
should have no place in the interpretation
of the First Amendment.
vi. Concurring: Douglas
1. reflected the absolutist position that only
he and Black, among Supreme Court
justices, ever fully subscribed to, namely
that the phrase "no law" in the First
Amendment ought to be interpreted very
literally, and that all speech is immune from
prosecution, regardless of the
 governmental interests advanced in
suppressing some particular instance of
speech. He briefly traced the history of the
"clear and present danger" test, illustrating
how it had been used over the years since
its debut in Schenck to dismiss dozens of
what Douglas viewed as legitimate First
Amendment claims.
b. Notes
i. Applications of Brandenburn
1. Hess v. Indians, the Court applied
Brandenburg to overturn a disorderly
conduct conviction stemming from a
campus anti-war demonstration.
2. NAACP v. Claiborn Hardware Co, the Court
invoked free speech to strike a Mississippi
judgment awarding damaged against black
participants in an economic boycott of
white merchants. Stevens.
ii. The Scope of Brandenburg
iii. Gitlow Redux?
1. Holding v. Humanitarian Law project, the
Court upheld a ban on speech to a terrorist
organization that constituted specific
training, expert advice or assistance or
service, as applied to the respondent’
intended speech. The Court ruled that the
ban was not constitutally vague and then
proceeded to apply strict scrutiny because
the statutory prohibition singled out speech
on the basis of its content.
ii. True Threats
1. Virginia v. Black
a. Facts: Barry Black (defendant) was convicted of violating a
Virginia statute which made it illegal to burn a cross if the
burning was done with intent to intimidate someone. The
statute also stated that the burning of a cross in itself is
prima facie evidence of intent to intimidate. At trial, the
court instructed the jury that the burning of the cross itself
was sufficient to infer the required intent. Black appealed
and the Supreme Court of Virginia reversed. The
prosecution appealed.
b. Issue: Does a statute that banks burning a cross only if it is
done to intimidate someone, and also states that the act
 of burning a cross itself is presumed to be done with
intimidation, violate the First Amendment.
c. Holding: A statute that bans an expressive act only if it is
done to intimidate someone, and also states that the act
itself is presumed to be done with intimidation, violates
the First Amendment.
d. Reasoning:
i. True threats 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.
ii. In this case, the prima facie evidence provision of
the cross burning statute does away with the
constitutional reason states are allowed to ban
cross burning under the First Amendment in the
first place.
iii. Under the First Amendment, states may ban cross
burning, not outright, but because the act has
historically been a signal for impending violence.
However, this impending violence is not always the
case and so states may only ban cross burning if
the impending violence is present through a show
of intimidation.
1. Under the prima facie evidence provision, a
court will convict a defendant every time
the defendant exercises his constitutional
right not to submit a defense on his behalf.
a. This is unconstitutional in that if the
defendant does not submit a
defense, the prima facie evidence
provision automatically deems him
guilty of the required intent to
intimidate.
b. Or, even as is the case here, where
Black does put on a defense, the
prima facie provision makes it much
more likely that the jury will simply
disregard the facts of the case and
adhere to the presumption of
intimidation.
i. As a result, the prima facie
provision makes the Virginia
statute unconstitutional.
 e. Rule: A statute that bans an expressive act only if it is done
to intimidate someone, and also states the act itself is
presumed to e done with intimidation, violates the First
Amendment.
f. Concurrence: Stevens
i. It should be emphasized that cross burning with an
intent to intimidate is not protected by the First
Amendment.
2. Notes
a. Hyperbole: Watts
b. Imminence?
c. Problem
d. More Questions; Few Answers
iii. Offensive Speech
1. The General Rule
a. Cohen v. California
i. The Los Angeles Municipal Court convicted Robert
Cohen (defendant) for violating the state penal
code prohibiting “maliciously and willfully
disturbing the peace or quiet of any neighborhood
or person by offensive conduct.” He was convicted
after wearing a jacket bearing the words “Fuck the
Draft.” Women and children were present. Cohen
argued that he wore the jacket as a means of
expressing the depth of his feelings toward the
Vietnam War and the draft. He did not engage in
any threatening conduct in conjunction with this
speech. Cohen challenged his conviction on First
Amendment grounds against the State of California
(plaintiff), but the California Court of Appeal upheld
the conviction. The Supreme Court of California
denied review, but the United States Supreme
Court granted certiorari.
ii. Issue: Whether a statute that prohibits distributing
the peach by offense speech violates the freedom
of expression protected by the First Amendment?
iii. Holding: Cohen’s conviction is based entirely on the
offensiveness of his speech, rather than any form
of conduct. Additionally, the case does not fall into
any recognized categories of unprotected speech
based on the Court’s prior jurisprudence, such as
obscenity or “fighting words.”
iv. Reasoning: Harlan
1. California argues that state law rightfully
banned Cohen’s speech because his
distasteful mode of expression was thrust
upon unwilling or unsuspecting viewers.
2. California further argues that the state has
a significant interest in protecting its
sensitive citizens from otherwise
unavoidable exposure to Cohen’s crude
form of protest.
3. This argument is rejected, as the
presumption of the presence of unwitting
listeners or viewers does not automatically
justify curtailing all potentially offensive
speech.
4. The government may only regulate
discourse to prevent others from hearing it
if it proves that substantial privacy interests
are being invaded in an essentially
intolerable manner.
5. The viewers of Cohen’s jacket had the
option of very easily looking away and
guarding themselves from the offensiveness
of his message.
a. Thus, California presented no
evidence to support Cohen’s
conviction for “breach of the peace”
because it did not show that persons
powerless to avoid his speech did, in
fact, object to it.
6. Additionally, it is necessary to determine
whether California could constitutionally
remove, as offensive conduct, the word
“fuck” from public discourse. The
constitutional right of freedom of
expression is very broad and powerful, and
is designed to remove governmental
restraints from public discussion.
7. Due to the extreme constitutional
importance of this freedom, states may be
required to tolerate speech that some
citizens find offensive.
8. There is no compelling reason for California
to criminalize this particular word as
opposed to any other potentially offensive
 words. In certain circumstances, the words
can be used as part of protected speech
under the First Amendment.
9. Finally, any governmental regulation that
prohibits this word risks suppressing a
substantial number of ideas in the process.
These principles justify overturning Cohen’s
conviction for using this particular word in
an expressive context.
10. Absent a more particularized and
compelling reason for its actions, California
cannot make Cohen’s simple public display
of a single four-letter expletive a criminal
offense. The decision of the lower courts is
reversed.
v. Rule: Absent a particularized and compelling
purpose, a state may not criminalize a public
display of a single four-letter expletive without
violating the First and Fourteenth Amendments.
vi. Dissent:
1. Cohen’s display contains mainly conduct
and little speech.
2. Even if it is speech the case should be
governed by Chaplishky, which held that
the First Amendment does not protect
fighting words.
b. Notes
i. Cohen’s Balancing: Categorical or Contextual
ii. Problems with Applying Cohen
iv. Obscenity, Pornography, and Putative Analogs
1. Obscenity
a. Roth v. United States; Albert’s v. California
i. Facts: The Defendant, Mr. Roth (Defendant #1) was
convicted of mailing obscene advertising and an
obscene book in violation of a federal statute
barring the mailing of “obscenity.” The Defendant,
Mr. Alberts (Defendant #2) was convicted under a
California law for “lewdly keeping for sale obscene
and indecent books” and “publishing an obscene
advertisement of them.”
ii. Issue: Whether obscenity is utterance within the
area of protected speech and press?
iii. Holding:
 1. In light of history, it is apparent that the
phrasing of the First Amendment of the
Constitution was not intended to protect
every utterance. Implicit in the history of
the First Amendment of the Constitution is
the rejection of obscenity as utterly without
redeeming social importance. Sex and
obscenity are not synonymous. Obscenity is
not within the area of protected speech and
press. The test for obscene material is
whether the average person, applying
contemporary community standards, the
dominant theme of the material taken as a
whole appeals to the prurient interest. This
test provides safeguards adequate to
withstand the constitutional infirmity.
Obscenity is not within the area of
protected speech and press. Therefore
obscenity is unprotected speech.
d. Content-Based Regulation of Speech
i. Obscenity
1. Paris Adult Theatre I v. Slaton
a. Facts: Paris Adult Theatre I (PAD) (defendant) owned and
operated an adult movie theater in Atlanta, Georgia. On
December 28, 1970, Slaton (plaintiff), the local district
attorney, complained to the local state court that PAD was
showing two obscene films depicting sexual acts and
nudity. PAD was convicted by the Georgia Supreme Court
of violating state obscenity laws. PAD challenged the
conviction on the grounds that it violated the First
Amendment, and the United States Supreme Court
granted certiorari.
b. Issue: Whether states may regulate commerce in obscene
material and exhibition of that material in places of public
accommodation.
c. Holding: Under the Fourteenth Amendment, states have
the power to make their own laws to prohibit obscenity.
d. Reasoning:
i. Thus, states may prohibit pornographic films if
those films are deemed to be obscene, even if they
are exhibited for consenting adults, only.
ii. States have a legitimate interest in regulating
material for all audiences in local commerce and in
 all places of public accommodation, subject only to
constitutional limits.
1. In particular, states have an interest in the
quality of public life and the total
community environment, the tone of
commerce in the great city centers, and
public safety itself.
a. Regarding the last interest, a
congressional report actually notes
the existence of a link between
obscene material and crime.
b. Thus, the state legislature can
reasonably assume, based on this
report, that the reading of obscene
books and the watching of obscene
displays of conduct could lead to
corruption and anti-social behavior.
iii. The prior holding in Roth v. United States, 354 U.S.
476 (1957), that obscenity is not protected under
the First Amendment is affirmed because of the
state’s interest in preventing these harms.
iv. Additionally, states have a legitimate interest in
regulating commerce in obscene material and in
regulating exhibition of obscene material in places
of public accommodation.
e. Rule: Obscene material has no protection under the First
Amendment, and states have a legitimate interest in
regulating commerce in obscene material and in
regulating exhibition of obscene material in places of
public accommodation.
f. Dissent: Brennan
i. This case represents the difficulty with reconciling
state interests in preventing obscenity with
individual interests involving protected First
Amendment speech.
ii. Obscenity law jurisprudence has been unstable
since the decision in Roth holding obscenity
unprotected. T
iii. his supports the conclusion that the Roth standard
does not work because there is no agreed-upon
definition of obscenity.
iv. As such, it is very difficult to separate obscenity
from protected speech. Ultimately, there should be
a reconsideration of the holding in Roth that a class
 of speech can be absolutely suppressed by federal
and state governments. In the present case,
however, while it is clear that the state’s interests
are compelling, there is no evidence provided that
justifies the complete prohibition of obscenity by
Georgia law.
ii. Pornography
1. New York v. Ferber
a. Facts: Ferber (defendant) owned an adult bookstore in
New York and was arrested after he sold two films
depicting minor boys masturbating to an undercover
police officer. Ferber was convicted in state trial court of
violating a New York criminal statute that prohibited
persons from knowingly promoting sexual performances
by children under the age of sixteen by distributing
material depicting such performances. The intermediate
appellate court affirmed Ferber’s conviction. The New York
Court of Appeals reversed the conviction, however, on
First Amendment grounds. The United States Supreme
Court granted certiorari.
b. Issue: Whether a state criminal statute prohibiting persons
from knowingly distributing material that promotes sexual
performances by children under the age of sixteen violates
the First Amendment.
c. Holding: The federal government and forty-seven states
have passed laws prohibiting the production of child
pornography without actually requiring it to be legally
obscene.
d. Reasoning:
i. While there is a risk that these statutes criminalize
protected expression as well, the states’ interest in
prohibiting child pornography outweighs this risk
for several reasons.
1. Firstly, states have a compelling interest in
safeguarding the physical and psychological
well-being of minors.
2. Secondly, the distribution of photographs
and films depicting juveniles is intrinsically
related to the sexual abuse of children in
two ways: (1) the materials produced are a
permanent record of the children’s
participation and the harm to the child is
exacerbated by their circulation; and (2) the
distribution network for child pornography
 must be closed if the production of material
that requires the sexual exploitation of
children is to be effectively controlled.
a. As states have a significant interest
in preventing the sexual abuse of
children, states may constitutionally
regulate the distribution of child
pornography even if it is not
considered legally obscene under
Miller test.
i. The Miller test for obscenity
is inapplicable for this case
because the test does not
take into account the
physically or psychologically
harm caused by the
production of the work.
3. Thirdly, the advertising and selling of child
pornography provide an economic motive
for and are thus an integral part of the
production of child pornography, an activity
illegal throughout the United States.
a. The expression is illegal and thus the
advertising and selling of the work
should also be illegal.
4. Fourthly, the value of permitting live
performances and photographic
reproductions of children engaged in lewd
sexual conduct is exceedingly modest, if not
de minimis.
a. Therefore, it is unlikely that the
work contains necessary literary or
artistic value that justifies protecting
it under the First Amendment.
5. Fifthly, recognizing and classifying child
pornography as a category of material
outside the protection of the First
Amendment is not incompatible with the
Court’s earlier decisions governing content-
based regulations of speech.
a. When a definable class of material,
such as that covered by this New
York statute, bears so heavily and
pervasively on the welfare of
 children engaged in its production,
the balance of competing interests is
clearly struck and it is permissible to
consider these materials as without
First Amendment protection. This
holding is limited, however, by the
fact that state legislation regulating
child pornography must adequately
define the conduct prohibited to be
constitutional.
6. Additionally, states must require knowledge
by a defendant to find criminal action. The
New York statute meets these
requirements, and thus Ferber’s conviction
is sustained. The decision of the New York
Court of Appeals is reversed.
ii. Rule: A state may prohibit the exhibition, sale, or
distribution of child pornography even if that
material does not meet the articulated test for
obscenity.
iii. Concurrence:
1. The majority is correct in determining that
states have special leeway in regulating
child pornography due to the special and
compelling interest in protecting the well-
being of the youth, and the particular
vulnerability of children.
a. However, the majority should not
have gone as far as to hold that
states may regulate even depictions
of children engaged in sexual acts
that have serious literary, artistic,
scientific, or medical value.
i. The First Amendment should
protect these particular
cases.
ii. However, because the work
in question in the case does
not fall into this category,
the majority’s decision is
correct.
2. American Booksellers Association v. Hundnut
a. Facts: The city of Indianapolis enacted an ordinance
prohibiting pornography. It defined “pornography” as a
 “practice that discriminates against women,” specifically in
a violent or “sexually explicit” manner. American
Booksellers Ass’n (“American”) (plaintiff) challenged the
constitutionality of the ordinance on the ground that it
violated the First Amendment. American brought suit in
federal district court against Hudnut (defendant), the
mayor of Indianapolis. The district court held the
ordinance unconstitutional, and Hudnut appealed to the
circuit court of appeals.
b. Issue: Whether an Indianapolis ordinance that criminalizes
pornography, defined as a practice that discriminates
against women, violates the First Amendment.
c. Holding: The Indianapolis ordinance (“ordinance”) defined
“pornography” in a manner that did not implicate any
aspect of the definition of obscenity, a category of speech
previously held unprotected by the First Amendment.
d. Reasoning:
i. This fact justifies treating pornography as defined
in the ordinance as a separate category of speech
from obscenity. The ordinance ultimately
discriminates based on the content of the speech
by advocating an “approved” way to view women,
how they react to sexual encounters, and how
sexes may relate to each other.
ii. Speech treating women in the “approved” way
(sexual encounters premised on equality) is lawful
no matter how sexually explicit, while speech
treating women in the “disapproved” way (as
submissive in sexual matters or enjoying
humiliation) is unlawful regardless of its potential
social value.
iii. This constitutes viewpoint discrimination that is
unconstitutional under the First Amendment.
Under the First Amendment, the government must
permit people to evaluate all ideas for themselves
and may not restrict expression simply because of
its message.
iv. The Indianapolis legislature had a valid premise for
adopting this legislation as it noted that certain
viewpoints tend to incite unfavorable actions.
v. The city argues that pornography was based on the
idea of subordinating women and would
perpetuate the negative subordination of women
in practice.
 vi. However, this fact serves merely to demonstrate
the power of pornography as speech. Ultimately,
people must be given a choice as to how they react
to speech, and speech itself may not be prohibited
under the First Amendment simply because it is
powerful.
vii. Historically, many ideas that have negatively
influenced culture (i.e., racism, bigotry, and anti-
semitism) have still been protected under the First
Amendment because holding otherwise would give
the government too much power to control
individuals’ thoughts and beliefs.
viii. Indianapolis could have successfully accomplished
its stated objective of protecting women by
criminalizing the actual injury of women involved in
the making of films.
ix. However, its ordinance does not pass
constitutional muster because it seeks to control
the actual viewpoints expressed in films.
Additionally, the city’s argument that pornography
should be restricted because it prevents the
“truth” from prevailing is rejected because under
the First Amendment, there is no such thing as a
“false idea.” The public must be left to sort out
truth and falsity of ideas for itself. Finally,
pornography cannot be considered “low value”
speech that should be prohibited based on this
status because Indianapolis itself argues that
pornography is dangerous due to its ability to
influence social relations, politics, and attitudes on
a grand scale. Indianapolis thus offers no rationale
upon which its ordinance can be sustained. The
decision of the district court is affirmed.
e. Rule: A municipal ordinance may not prohibit
pornography on the ground that it subordinates women,
as doing so constitutes impermissible viewpoint
discrimination under the First Amendment.
3. Ashcroft v. Free Speech Coalition
a. Facts: Congress passed the federal Child Pornography
Protection Act (CPPA) in 1996 to extend federal
prohibition against child pornography to sexually explicit
images that appear to depict minors but that were actually
produced without using real children. Specifically, the
statute prohibited possessing or distributing images that
 could be created by using adults who look like minors or
by using computer imaging. The Free Speech Coalition
(FSC) (plaintiff) brought suit in federal district court against
Attorney General Ashcroft and the United States
Government (defendant) on the grounds that the CPPA
violated the First Amendment. The district court upheld
the CPPA. The court of appeals reversed claiming that the
CPPA was unconstitutionally broad. The United States
Supreme Court granted certiorari.
b. Issue: Whether the federal Child Pornography Protection
Act of 1996 (CPPA) unconstitutionally restricted speech in
violation of the First Amendment because it proscribes a
significant volume of speech that is not obscene under
Miller and not child pornography under Ferber.
c. Holding and Reasoning:
i. The CPPA prohibits any visual depiction, whether
virtual child pornography, Renaissance paintings, or
Hollywood movies, that mimics a minor engaging in
sexual conduct.
ii. The statute does not take into account how the
work was produced, or whether any actual children
were harmed in production.
iii. The United States argues, however, that the CPPA
is necessary to prevent indirect harm of children in
several ways. Firstly, pedophiles can use depictions
of children engaged in sexual acts to convince
actual children to participate in sexual activity with
adults.
iv. Secondly, the pornographic images stimulate and
motivate pedophiles. Pedophiles will seek out
more works of child pornography and product
demand will encourage the sexual abuse and
exploitation of actual children.
v. Finally, the existence of highly realistic, computer-
generated images could make it harder to
prosecute pornographers that used real minors
because of the difficulty in determining whether
real children were used. In contrast, the FSC argues
that the “appears to be” text in the CPPA is
substantially overbroad because it prohibits
significant lawful expression, and applies severe
penalties for even the possession of material that
appears to depict real children engaged in sexual
acts.
 vi. To hold that works containing a single explicit act
by a minor are unprotected under Ferber’s
prohibition of child pornography is inconsistent
with Ferber for two reasons.
vii. Firstly, Ferber’s judgment about child pornography
is based upon how it is made, not on what it
communicates. Secondly, Ferber does not hold that
child pornography is by definition without value.
On the contrary, the Ferber Court recognized that
some instances of child pornography could be
considered valuable and protected if made by
virtual children. This distinction is central to
Ferber’s holding. The CPPA goes beyond Ferber,
prohibiting virtual images of children and
criminalizing works that do not use real children.
Additionally, the CPPA goes beyond the Court’s
prior holding in Miller. The CPPA criminalizes all
works depicting virtual images of children engaging
in sexual activity, regardless of whether these
works meet the legal definition of “obscenity.”
viii. Thus, the CPPA is inconsistent with Miller and finds
no support in Ferber. The government’s argument
that virtual child pornography might encourage
pedophiles to seduce real children is rejected. The
mere fact that children can view acceptable speech
for adults is not enough to find that speech
unprotected by the First Amendment.
ix. Additionally, the mere tendency of speech to
encourage unlawful acts is not a sufficient reason
for banning it.
x. The government’s argument that virtual child
pornography is basically indistinguishable from
actual child pornography is also rejected because if
this is the case, it is doubtful anyone would ever
risk criminal sanctions by using real children in
pornography.
xi. Finally, the government’s position that makers of
virtual pornography are more difficult to prosecute
than makers of actual child pornography is rejected
because it is inconsistent with the First
Amendment to criminalize a wide range of
protected speech for the purpose of criminalizing
limited unprotected speech.
 xii. The CPPA is overbroad and unconstitutional. The
decision of the court of appeals is affirmed.
iii. Analogs: Depictions of Cruelty and Violence
1. United States v. Stevens
a. Facts: Partially in response to the growing prevalence of
dog fighting and animal torture videos called “crush”
videos, Congress enacted 18 U.S.C. § 48, which
criminalized the creation, sale, or possession of certain
depictions of animal cruelty. The law defined a depiction
of “animal cruelty” as one in which a living animal is
intentionally maimed, mutilated, tortured, wounded, or
killed. The statute did not address the underlying acts
harmful to animals. Utilizing the statute, the federal
government brought suit against Robert Stevens
(defendant), who owned a business that sold videos of pit
bulls engaging in dogfights and attacking other animals.
Stevens filed a motion to dismiss the indictment, arguing
that § 48 violated the First Amendment. The district court
denied the motion and held that the depictions were
likened to obscenity or child pornography and thus were
not protected by the First Amendment. A jury convicted
Stevens and sentenced him to three concurrent sentences
of 37 months in prison. The court of appeals, sitting en
banc, reversed and declared § 48 unconstitutional and
vacated Stevens’ conviction. The U.S. Supreme Court
granted certiorari to review.
b. Issue: Is a federal law that seeks to ban visual and auditory
depictions of animal cruelty overbroad in violation of the
First Amendment?
c. Holding and Reasoning:
i. Generally, the First Amendment means that the
federal government lacks the power to restrict
expression because of its message, its ideas, its
subject matter, or its content. Ashcroft v. American
Civil Liberties Union, 535 U.S. 564, 573 (2002).
Here, § 48 explicitly regulates expression based on
content, namely, visual and auditory depictions of
animal cruelty.
ii. Consequently, the statute is presumptively invalid
and the burden lies with the government to show
that the law serves some compelling interest.
iii. The government’s argument that the Court should
use a balancing test to determine whether
depictions of animal cruelty should be added to
 other categories of restricted speech, such as
obscenity, defamation, fraud, and incitement, is
without merit.
iv. When the Court has held those types of categories
of speech are outside the protection of the First
Amendment, it was not based on some cost-
benefit analysis.
v. Rather, it was based on how narrowly a
governmental entity fashioned a law to achieve
some compelling interest. Here, the statute is
overbroad and reaches too much protected
speech. Although the law seeks to ban “crush”
videos and other similar content, it also applies to
depictions of hunting, an activity enjoyed by a large
portion of the country.
vi. The only thing standing between defendants who
sell popular hunting videos and possibly five years
in federal prison is the statute’s exceptions clause.
Section 48’s exceptions clause exempts from the
prohibition “any depiction that has serious
religious, political, scientific, educational,
journalistic, historical, or artistic value.”
vii. The Government argues that hunting can fall into
one of these categories. However, determining
whether a particular depiction falls within one of
the excepted categories is too tenuous to
withstand constitutional scrutiny. For example,
what is considered “educational” to one person
may not be to another person.
viii. Although there may be a broad societal consensus
against cruelty to animals, there is substantial
disagreement on what types of conduct are
properly regarded as cruel. Because the statute is
overbroad and applies to a considerable amount of
protected speech it violates the First Amendment.
ix. Nevertheless, the government states that it will not
prosecute an individual or group unless the
depiction is of “extreme” cruelty. The
government’s statement strengthens the Court’s
argument that § 48 is too vague and ambiguous to
discern what depictions would be banned and what
would be allowed. The Court will not uphold an
otherwise unconstitutional law merely because the
 government promises to use it responsibly. The
judgment of the court of appeals is affirmed.
d. Rule: A federal law that seeks to ban visual and auditory
depictions of animal cruelty is overbroad in violation of
the First Amendment.
iv. Indecency, Cable Television, and the Internent
1. Reno v. American Civil Liberties Union
a. The “indecent transmission” provision of the
Communications Decency Act of 1996 (CDA) prohibited
the knowing transmission of obscene or indecent
messages via the internet to any recipient under the age of
eighteen. The “patently offensive display” provision of the
CDA prohibited the knowing, sending, or displaying of
patently offensive messages in a manner that is available
to a person under eighteen years of age. The American
Civil Liberties Union (ACLU) (plaintiff) brought suit in
federal district court against Reno (defendant), Attorney
General of the United States, on the grounds that the CDA
violated the First Amendment’s protection of freedom of
speech. The district court found the CDA unconstitutional
and enjoined its enforcement. Reno appealed directly to
the United States Supreme Court.
b. Issue: Whether federal statutes enacted to protect minors
from “indecent” and “patently offensive” communications
on the internet violate the First Amendment.
c. Holding and Reasoning:
i. The CDA is distinguishable from the regulation
upheld in FCC v. Pacifica, 438 U.S. 726 (1978), for
several reasons.
ii. Firstly, the order in Pacifica was issued by an
agency that had been regulating radio stations for
decades, and the regulation targeted a specific
broadcast that was a dramatic departure from
traditional program content.
iii. In contrast, the CDA represents a broad categorical
prohibition of internet content that is not limited
to particular times and not dependent on any
evaluation by an agency familiar with the internet.
iv. Secondly, unlike the CDA, the FCC’s order was not
punitive.
v. Finally, in Pacifica, the Court reasoned that radio
stations have a long history of government
regulation and limited First Amendment
 protection. In contrast, the internet has no such
history.
vi. The CDA is specifically designed to protect minor
children from the primary effects of “indecent” and
“patently offensive” speech, rather than from any
secondary effects of speech.
vii. Thus, the CDA is a content-based restriction on
speech and could not be properly analyzed as a
time, place, and manner regulation. It is thus
appropriate for the Court to use strict scrutiny in
determining the constitutionality of the CDA.
viii. The government does not have a truly compelling
purpose in regulating the internet since the
internet has not been traditionally regulated and is
not as invasive into the home as radio broadcasts.
ix. The second component of strict scrutiny is an
inquiry into whether the means used by the
government are narrowly tailored to accomplish a
compelling purpose.
x. The CDA is very broad in its scope since it does not
provide specific definitions of content that is
deemed “indecent” or “offensive.”
xi. Thus, the CDA is overly vague and risks prohibiting
a large amount of speech that adults have a
constitutional right to receive and to address to
one another.
xii. The risk that some minors might be exposed to this
material does not justify such a vague, blanket
restriction on speech. The CDA violates the First
Amendment, and the decision of the district court
is affirmed.
d. Rule: Under the First Amendment, the government may
not regulate the transmission and display of content on
the internet unless it does so for a compelling purpose
and uses means that are narrowly tailored to that
purpose.
e. Fighting Words
i. Chaplinsky v. New Hampshire
1. Facts: Chaplinsky (defendant) was a member of the Jehovah’s
Witnesses. Chaplinsky was distributing religious literature on a
street corner. Several citizens complained to the City Marshal,
Bowering, that Chaplinsky was denouncing all religions. Bowering
responded that Chaplinsky was lawfully permitted to voice his
opinion, but nevertheless warned Chaplinsky that the crowd was
 getting restless. After a disturbance occurred later, Chaplinsky
was escorted by a police officer to the police station. On the way,
Chaplinsky passed Bowering and called him a “racketeer” and a
“fascist.” Chaplinsky admitted to uttering the offensive language
in question. Chaplinsky was convicted by the State of New
Hampshire (plaintiff) for violating a New Hampshire law
prohibiting speech directed at a person on public streets that
derides, offends or annoys others. Chaplinsky’s conviction was
affirmed by the state supreme court, and he appealed to the
United States Supreme Court on the grounds that the New
Hampshire law violated the First Amendment.
2. Issue: Whether a New Hampshire law prohibiting offensive,
derisive, or annoying speech on public streets violates the First
Amendment.
3. Holding and Reasoning:
a. Even under the broadest reading of the First Amendment,
the freedom of speech cannot be said to be absolute.
Punishment of certain narrow categories of speech has
never been questioned under the Constitution.
b. These categories included lewd and obscene, profane, and
libelous speech, as well as insulting speech or “fighting
words”—those that, by their very utterance, inflict injury
or tend to incite an immediate breach of the peace.
c. This type of speech has very little social value, and thus
makes no contribution to the marketplace of ideas
protected by the First Amendment.
d. Chaplinsky’s words directed to Bowering fell into this
category of speech.
e. Thus, the New Hampshire statute prohibiting them does
not violate the First Amendment. Chaplinsky’s conviction
by the lower courts is affirmed.
4. Rule:
a. “Fighting words” that incite others to violence are not
protected by the First Amendment from governmental
regulation.
ii. Notes:
1. The Scope of Fighting Words
2. Subsequent Cases
a. Gooding v. Wilson
b. Lewis v. New Orleans
c. Texas v. Johnson – The Court struck down Johnson’s
conviction for burning an American flag under
circumstances he knew would reasonalby offend
onlookers.
f. Hate Speech
i. Beauharais v. Illinois
ii. R.A.V. v. City of St. Paul
1. R.A.V. (defendant), a juvenile, and several other teenagers burned
a wooden cross on the lawn of a home owned by a black family.
R.A.V. was arrested for violating the St. Paul Bias Motivated Crime
Ordinance (the Ordinance), enacted by the City of St. Paul,
Minnesota (plaintiff) to promote human rights for groups that
have historically been subject to discrimination. The Ordinance
prohibited the placement of hateful symbols, including burning
crosses, “which one knows or has reasonable grounds to know
arouse . . . anger, alarm or resentment in others on the basis of
race, color, creed, religion or gender.” R.A.V. moved to dismiss the
charge on the grounds that the Ordinance was facially invalid
under the First Amendment. Specifically, R.A.V. argued the
Ordinance was an unconstitutionally overbroad content-based
regulation of speech. The trial court granted the motion. The
Minnesota Supreme Court reversed, holding that the language of
the statute, “arouses anger, alarm or resentment,” limited the
regulation to “fighting words,” which are not protected speech.
The United States Supreme Court granted certiorari.
2. Issue: Whether a state ordinance prohibiting expression of hateful
speech violates the First Amendment
3. Holding:
a. A statute that regulates the content of speech on its face
will only survive a constitutional challenge if it is necessary
to serve a compelling state interest.
i. See Burson v. Freeman, 504 U.S. 191 (1992).
ii. This means the statute will be struck down if there
is a content-neutral alternative that satisfies the
state’s objective.
b. Under the First Amendment, the government is generally
barred from regulating the ideas expressed by speech or
conduct. There are a number of traditional exceptions to
this rule that allow the government to regulate speech
with only “slight social value,” such as obscenity,
defamation, and “fighting words.”
i. Nevertheless, the government may not use these
exceptions to create content-based regulations. For
example, a regulation could not forbid only
obscenity that criticized the government.
ii. This is similar to the framework for time, place, and
manner restrictions on speech.
 1. In this case, the Court is bound by the
Minnesota Supreme Court’s interpretation
that the statute regulates only “fighting
words” within the meaning of Chaplinsky v.
New Hampshire, 315 U.S. 568 (1942).
Chaplinsky defines “fighting words” as
“conduct that itself inflicts injury or tends to
incite immediate violence.”
a. Such language is not entirely
without value but is not essential to
the exposition of ideas.
i. This implies that a state
might not be permitted to
regulate fighting words in all
contexts.
ii. The constitutionality of such
regulations ultimately
depends on various elements
of content expressed in the
speech and the secondary
effects stemming from that
content.
iii. The Ordinance is facially unconstitutional despite
its narrow construction by the Minnesota Supreme
Court. The statute specifically applies to fighting
words that provoke violence “on the basis of race,
color, creed, religion, or gender.”
1. Under these terms, fighting words are
permissible as long as they do not address
one of the disfavored topics.
2. This constitutes a prime example of
impermissible content discrimination, and
even viewpoint discrimination, under the
First Amendment.
a. Thus, there is no need to address
whether the statute is overbroad.
Despite the Court’s general
disagreement with R.A.V.’s actions,
the Ordinance as written is
unconstitutional.
4. Rule: Under the First Amendment, states may not regulate
categories of unprotected speech, such as fighting words, on the
basis of content.
5. Concurrence: White
 a. The majority is correct in reversing the judgment of the
Minnesota Supreme Court.
b. However, its reasoning is flawed. Relying on First
Amendment jurisprudence, the Court could conclude that
the Ordinance is fatally overbroad because it criminalizes
expression protected by the First Amendment, as well as
unprotected speech.
c. It is well established that the First Amendment protects
speech with even a small amount of value to society.
d. The Court’s all-or-nothing approach allows governments to
regulate an entire category of unprotected speech, but not
a subset. Thus, governments must “regulate for problems
that do not exist.”
The Court should have analyzed the Ordinance under the
strict-scrutiny framework. Even though the state has a
compelling interest in preventing hate speech, the means
it uses in the Ordinance are not narrowly tailored to
achieve this end.
e. Thus, the Court is correct in holding that the Ordinance is
unconstitutional.
6. Concurrence: Blackmun
a. The majority’s holding is improper because it abandons
the categorical approach of analyzing First Amendment
cases and seems “inevitably to relax the level of scrutiny
applicable to content-based laws.”
b. This case may be regarded merely as “an aberration—a
case where the Court manipulated doctrine to strike down
an ordinance whose premise it opposed.”
c. The First Amendment is not compromised by permitting
states to regulate conduct such as cross-burning and other
hate speech, though there is substantial danger in taking
away a city’s ability to bar racially motivated fighting
words.
d. However, the majority is correct in striking down the
Ordinance because it goes beyond the “fighting words”
doctrine and criminalizes protected speech.
7. Concurrence: Stevens
a. Activity that creates unique risks or causes unique harm
may be specifically regulated or punished more severely
than the same conduct in other contexts.
b. Hate speech directed at someone over her race may be
much more dangerous than the same speech related to
her favorite sports team.
c. Regulations of this type are neutral.
 d. The Ordinance is unconstitutionally overbroad, but the
absolutist approach adopted by the Court and
concurrences is improper. The Court departs from its
categorical approach to speech regulation and looks
instead for “elements” of speech that may be
“proscrib[ed].”
e. For example, the majority says “obscene antigovernment
speech” can be regulated for obscenity but not the ideas it
expresses.
f. This ignores the fact that “obscene antigovernment
speech” is an oxymoron. Selective regulations that do not
prohibit an entire category of unprotected speech are
commonplace and certainly not “presumptively invalid.”
g. Such regulations should be upheld if based on legitimate
and neutral reasoning. The Ordinance is an evenhanded
regulation of harmful expressive conduct, and if it were
not overbroad it would be constitutional.
iii. Notes
1. Implications of R.A.V. and Mitchell
2. Cross Burning with Intent to Intimidate
iv. Notes
1. Are Categorical Differences Significant?
2. The Peculiar Potency of Symbolic Expression
3. Workplace Harassment
g. Hostile Audiences
i. Terminiello v. Chicago
1. Facts: ather Arthur Terminiello, in an auditorium in Chicago,
delivered a vitriolic speech in which he criticized various political
and racial groups and viciously condemned the protesting crowd
that had gathered outside the auditorium. Policemen assigned to
the event were unable to prevent several disturbances by the
"angry and turbulent" crowd. The police arrested Terminiello for
"breach of the peace." He was then tried and convicted for his
central role in inciting a riot.
2. Issue: did the Chicago ordinance violate Terminiello's right of free
expression guaranteed by the First Amendment?
3. Holding:
a. the Court held that the "breach of the peace" ordinance
unconstitutionally infringed upon the freedom of speech.
Noting that "[t]he vitality of civil and political institutions
in our society depends on free discussion," the Court held
that speech could be restricted only in the event that it
was "likely to produce a clear and present danger of a
serious substantive evil that rises far above public
 inconvenience, annoyance, or unrest." Justice Douglas
wrote that "a function of free speech under our system is
to invite dispute. It may indeed best serve its high purpose
when it induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs
people to anger."
ii. Feiner v. New York
1. Facts: On March 8, 1949, Irving Feiner, a white student at
Syracuse University, made an inflammatory speech on a street
corner in Syracuse, New York. During the speech, which was
intended to encourage listeners to attend a leftist rally, Feiner
made several disparaging remarks about local politicians,
organizations, and President Truman. A crowd gathered, and
several listeners began "muttering" and "shoving." One listener
threatened Feiner. Two officers on the scene, fearing violence,
asked Feiner twice to end his speech. After he refused, the
officers arrested Feiner for inciting a breach of the peace. A trial
court found Feiner guilty and sentenced him to thirty days in
prison. On appeal, Feiner argued his arrest violated his right to
free speech under the First Amendment. The Onondaga County
Court and the New York Court of Appeals each denied his claim.
2. Issue: Did Feiner’s arrest for inciting a breach of the peace violate
his right to free speech under the First Amendment.
3. Holding:
a. No. In a 6-3 opinion authored by Chief Justice Fred Vinson,
the Court applied the "clear and present danger" principle
it originally articulated in Schenck v. United States (1919).
b. According to the Court, Feiner's arrest was a valid exercise
of "the interest of the community in maintaining peace
and order on its streets."
c. The Chief Justice dismissed the notion that the arrest
amounted to the suppression of free communication. "It is
one thing to say that the police cannot be used as an
instrument for the suppression of unpopular views, and
another to say that, when as here the speaker passes the
bounds of argument or persuasion and undertakes
incitement to riot, they are powerless to prevent a breach
of the peace."
h. Something
i. Brown v. Entertainment Merchants Association
1. Entertainment Merchants Association and others (collectively
Plaintiffs) filed suit in federal court against California Governor
Edmund G. Brown, Jr., and others (collectively Defendants)
challenging a state law that prohibited the sale or rental of
 “violent video games” to minors as violating of the First
Amendment. The law applied to games that allowed a player to
kill, maim, dismember, or sexually assault an image of a human
being, thus rendering the game lacking in serious literary, artistic,
political, or scientific value for minors. The district found in favor
of Plaintiffs and concluded that the statute violated the First
Amendment. Plaintiffs appealed and the court of appeals
affirmed. The U.S. Supreme Court granted certiorari to review.
2. Issue: Must a state law that seeks to prohibit the ale of violent
video games to minors be narrowly tailored to serve a legitimate
government interest.
3. Holding:
a. Generally, government lacks the power to restrict
expression because of its message, its ideas, its subject
matter, or its content. Ashcroft v. American Civil Liberties
Union, 535 U.S. 564 (2002).
b. Of course, there are exceptions. Content involving
obscenity, defamation, incitement, and specific other
categories may be restricted in some circumstances.
i. Video games, like books, plays, and movies,
communicate ideas and often social messages
through characters and plot.
ii. They also enjoy First Amendment protection. The
California law does not target adults; it solely
targets children.
1. That is unprecedented and mistaken.
Minors are entitled to a significant measure
of First Amendment protection and the
government may only bar materials to them
by showing that the law is narrowly drawn
to serve a compelling government interest.
California cannot meet that standard.
c. While it is true that a state may use its power to protect
children from harm, it does not have free reign to restrict
the ideas to which children may be exposed. Here,
California offered no significant evidence to link violent
video games and incidents of harm to minors.
d. The only justification provided by the state is that violent
video games tend to make some minors more aggressive.
Such a justification is insufficient against the backdrop of
the sweeping regulation.
e. Additionally, the law is flawed because although a minor
cannot purchase a violent video game, the state legislature
is perfectly willing to sell such a game to a parent to then
 give to the child. This is not the narrow tailoring that
restriction of First Amendment rights requires. California’s
legislation straddles the fence between (1) addressing a
serious social problem and (2) helping concerned parents
control their children.
f. As a means of protecting children from portrayals of
violence, the law is seriously underinclusive, not only
because it excludes portrayals other than video games, but
also because it allows a parent to purchase the game. And
as a means of assisting concerned parents, the law is
seriously overinclusive because it abridges the First
Amendment rights of young people whose parents and
guardians think violent video games are a harmless
pastime.
4. Rule: A state law that seeks to prohibit the sale of violent video
games to minors must be narrowly tailored to serve a legitimate
government interest.
5. Concurrence
a. Although the majority reaches the correct conclusion, its
analysis is flawed. The Court should have taken a harder
look at the evolving technology. We should take into
account the possibility that developing technology may
have important societal implications that will become
apparent only with time.
6. Dissent: Thomas
a. The “freedom of speech” as originally understood, does not
include a right to speak to minors without going through
the minors’ parents or guardians.
7. Dissent: Breyer
a. The interest that California advances in support of the
statute is compelling. The state’s legislature seeks to offer a
choice to parents that would ban their children from
purchasing violent video games. Based upon the Court’s
precedent, the First Amendment does not disable
government from helping parents make such a choice—a
choice not to have their children buy extremely violent,
interactive video games, which they more than reasonably
fear pose a risk of harm to those children.
i. Content-Based Regulation of Speech
i. Defamation
1. New York Times Co. v. Sullivan
a. Facts: Sullivan (plaintiff) was Commissioner of the Police
Department, Fire Department, Department of the Cemetery,
and Department of Scales for Montgomery, Alabama. He
brought a civil libel action against New York Times Co.
 (defendant) after it printed allegedly false and defamatory
statements about Sullivan’s actions to control African
American protesters and his treatment of Dr. Martin Luther
King, Jr. The newspaper article in question accused
Sullivan’s police force of conducting a wave of terror
against African American students and brutally harassing
Dr. King. It is undisputed that several of the allegations
were either false or exaggerated. At trial, the trial judge
charged the jury that the statements in the article were
“libelous per se” and that damages were appropriate if the
statements were merely “of and concerning” Sullivan. The
jury returned a verdict for Sullivan and awarded him
$500,000 in damages. The Alabama Supreme Court
affirmed, and the United States Supreme Court granted
certiorari.
b. Issue: Whether a state law for civil liability that disregards
intention abridges the freedom of speech and press
guaranteed by the First and Fourteenth Amendment when
applied to an action brought by brought public official
against critics of his official conduct?
c. Holding and Reasoning:
i. The rule of law announced by the Alabama courts is
constitutionally deficient because it fails to provide
safeguards for the freedom of speech and freedom
of press required by the First and Fourteenth
Amendments.
1. It is well established that there is a profound
national commitment in America to the
principle that debate on public issues should
be uninhibited, robust, and wide-open, and
that it may well include vehement, caustic,
and sometimes unpleasantly sharp attacks on
the government and public officials.
ii. The treatment of African Americans in the Civil
Rights movement qualified as one such issue
worthy of open public debate.
1. However, the question remains whether the
otherwise constitutionally-protected article
forfeited its protections because it contained
false and allegedly defamatory statements.
2. Historically, First Amendment protections
do not turn on whether the speech sought to
be protected is true, popular, or socially
useful.
iii. Additionally, criticism of official conduct—an
important aspect of open public debate—does not
 lose its constitutional protection just because it is
defamatory.
iv. Since both false and defamatory speech relating to
public officials is individually protected, the First
Amendment also protects the combination of the
two.
1. This is historically demonstrated by
Congress’s conclusion that the Sedition Act
of 1798 was unconstitutional because it
prohibited the ability of individuals to speak
out against the government.
2. Congress found that it was inadequate even
to permit defendants accused of violating the
Sedition Act to offer a defense of truth, as
this required an impermissible level of self-
censorship in violation of the First and
Fourteenth Amendments.
a. Thus, it would be inadequate to
permit New York Times Co. to offer
a defense of truth.
3. The only proper way to guarantee that the
protections of freedom of speech and of the
press are not ignored in civil libel actions is
to adopt a federal rule that prohibits a public
official from recovering damages for a
defamatory falsehood relating to his official
conduct unless he proves that the statement
was made with actual malice.
v. Actual malice occurs when the defendant knew that
the statement was false or acted with reckless
disregard of the truth.
vi. The evidence presented is constitutionally
insufficient to support a judgment for Sullivan as
there was no indication that actual malice existed.
d. Rule: If a plaintiff is a public official or is running for
public office, he or she can recover damages for
defamation only by proving with clear and convincing
evidence the falsity of the defamatory statements and
the presence of actual malice in the speaker.
2. Notes:
a. Why Protect Falsity
b. The Extension of Sullivan to Public Figures
i. Curtis Publishing Co. v. Butts and Associated Press
v. Walker, decided together extended the Sullivan
rule to include defamation of public figures as well
as of public officials.
 c. Defamation of Private Figures
i. In Rosenbloom v. Metromedia Inc.
1. A plurality of the Court argued that the
subject matter of the alleged defamation
ought to be the deciding factor for
application of the Sullivan rule: If a matter is
a subject of general or public interest, it
cannot suddenly become less so merely
because a private individual is involved.
3. Gertz v. Robert Welch, Inc.
a. n 1968, a Chicago policeman named Nuccio shot and killed
a youth named Nelson. State authorities prosecuted
Nuccio for the homicide and ultimately obtained a
conviction for second degree murder. The Nelson family
retained Elmer Gertz (plaintiff), an attorney, to represent
them in a civil action against Nuccio. Robert Welch, Inc.
(Welch) (defendant) was a publisher of American Opinion,
a magazine warning of a nationwide conspiracy to
discredit local law enforcement agencies and replace them
with a national police force capable of supporting a
Communist dictatorship. The magazine ran a story about
the Nuccio trial where it accused Gertz of being a
Communist and participating in the Communist campaign
against local police. The magazine article contained serious
factual inaccuracies. Gertz filed suit against Welch in
federal district court seeking damages for libel. The district
court awarded Gertz $50,000 in damages. The appellate
court affirmed but found that Gertz may have needed to
prove actual malice to recover under New York Times v.
Sullivan, 376 U.S. 254 (1964). The United States Supreme
Court granted certiorari.
b. Issue: Whether a publisher of a false defamatory
statement about a private individual may claim a federal
constitutional privilege against liability for injures inflicted
by the statement.
c. Holding and Reasoning: Powell
i. No. Gertz is a private figure and thus did not have
to prove actual malice to recover damages under
applicable state law.
1. As long as they do not impose liability
without fault, states may define for
themselves the appropriate standard of
liability for a publisher or broadcaster of
 defamatory false statements causing injury
to a private individual.
a. However, state remedies for
defamatory falsehoods are limited in
that they may reach no farther than
is necessary to protect the
legitimate interest involved.
b. Thus, if applicable state law does
not require a private plaintiff to
prove the existence of “actual
malice” as required by New York
Times, and that plaintiff does not
prove actual malice, he may not
recover damages for defamatory
statements unless he has suffered
“actual injury” from the statements.
ii. States may not, however, set their own
requirements for recovering punitive damages, and
private plaintiffs thus can only recover punitive
damages by proving the existence of actual malice.
1. Otherwise, the private plaintiff’s recovery is
limited to only damages which are sufficient
to compensate him for actual injury.
Despite his status as an officer of the court
and a former member of the city housing
committee, Gertz is not a public official.
2. Additionally, his participation in the Nuccio
trial did not give him any “general fame or
notoriety in the community” sufficient to
make him a public figure. Gertz should be
treated as a private individual.
a. Applicable state law permits
recovery for damages without
proving actual malice.
b. Gertz thus did not have to prove
actual malice to justify his award of
$50,000 from the jury.
c. As this award was given to Gertz to
compensate him for his injuries, it is
upheld. The decision of the lower
courts is affirmed.
d. Rule:
i. As long as they do not impose liability without
fault, states may define for themselves the
 appropriate standard of liability for a publisher or
broadcaster of defamatory false statements
causing injury to a private individual.
e. Concurrence: Blackman
i. The majority’s holding gives the press sufficient
protection against punitive damages. The Supreme
Court should settle its position once and for all on
defamation law.
f. Dissent: White
i. For almost two hundred years of the Nation’s
history, the law of defamation and the right of
private individuals to recover for defamatory
falsehoods have been exclusively governed by state
courts and state legislatures.
ii. The law governing the defamation of private
citizens remained untouched by the First
Amendment because until recently, the Supreme
Court consistently held that libelous words
constitute a class of speech wholly unprotected by
the First Amendment, subject only to the exception
carved out in 1964 by New York Times.
iii. However, the majority’s decision imposes federal
control over major aspects of libel law by requiring
the plaintiff in all libel actions to prove the
existence of actual damages.
iv. This goes against the defamation laws of most
states.
v. The majority should adopt a standard of strict
liability for defamatory statements made about
private individuals, as this is the only way to
provide adequate constitutional protection for
plaintiffs.
4. Notes
a. Defamatory Speech of Purely Private Concern
b. Burden of Proof of Defamation
c. No Special Protection for Opinions
d. Commercial Defamation
e. A Summary]
ii. Lies About Oneself
1. United States v. Alvarez
a. Facts: The Stolen Valor Act (Act) made it illegal to lie about
receiving military decorations or medals. Xavier Alvarez
(plaintiff) told people that he received the Congressional
Medal of Honor when in fact he did not. Alvarez was
 indicted under the Act. Alvarez sued, claiming that the Act
was invalid under the First Amendment. The district court
ruled against him. The United States Court of Appeals for
the Ninth Circuit reversed. The United States Supreme
Court granted certiorari.
b. Issue: Is there a general First Amendment exception for
false statements?
c. Holding and Statements:
i. No. There is no general First Amendment exception
for false statements. While the falsity of
statements can be relevant to a court’s analysis of
a First Amendment issue (e.g, defamation or
fraud), the falsity is not determinative. In this case,
the Act “targets falsity and nothing more.”
ii. The Court rejects the government’s comparison to
other, constitutional restrictions on false
statements, including false statements made to a
government official, perjury, and false
representation that one is speaking as a
government official.
1. Each of these restrictions on falsity is
particular and carries with it a higher
purpose than a general restriction on false
statements.
2. The government has not demonstrated that
a false statement about military
decorations reaches this level.
a. Indeed, the Act is impermissibly
broad, suppressing false statements
about military decorations
regardless of the context—e.g.,
whether the statement was made
for material gain—and when, where,
or to whom the statements are
made.
iii. To pass constitutional muster, a content-based
restriction on free speech must be actually
necessary to further a compelling governmental
interest. Certainly the government’s interest of
ensuring the integrity of the Medal of Honor is
compelling, but the government has not shown the
necessary causal link between the interest and the
restriction.
 1. Additionally, the government has not
shown why lesser restrictive means, such as
refutation of the false statement or an
online database of Medal of Honor winners,
are not more appropriate.
d. Rule: There is no general First Amendment exception for
false statements.
e. Concurrence: Breyer
i. The plurality’s holding is correct. However, given
that regulation of false statements can suppress
truthful speech, intermediate scrutiny should have
been used rather than strict scrutiny.
ii. Regardless, the government failed to prove that a
more narrowly tailored statute would have been
ineffective at achieving its interest. The Act thus
fails intermediate scrutiny as well.
f. Dissent: Alito
i. The Act is narrow and presents no threat to the
freedom of speech.
ii. On the contrary, the false statements prohibited by
the Act contain no value and produce actual harm.
Indeed, false statements of fact should not be
afforded any First Amendment protections.
iii. In addition, while the plurality and the concurrence
state that lesser restrictive means were available,
Congress properly concluded that any alternatives
were inadequate to achieve the government’s
compelling interest.
iv. Finally, the plurality and the concurrence seem to
strike down the Act due to overbreadth, but each
fails to make the required showing in an
overbreadth determination that the overbreadth is
“substantial.”
j. Tortious Invasion of Emotional and Economic Interest
i. Intentional Infliction of Emotional Distress
1. Hustler Magazine v. Falwell
a. Facts: Hustler Magazine is a magazine of nationwide
circulation. Jerry Falwell (plaintiff) was a nationally known
minister who had been an active commentator on political
and public affairs. Hustler printed a parody article that
suggested Falwell and his mother were drunk and
immoral. Falwell sued Hustler Magazine and its publisher,
Larry Flynt (defendants) in federal district court to recover
damages for invasion of privacy, libel, and intentional
 infliction of emotional distress. The district court held for
Falwell only on the intentional infliction of emotional
distress claim and awarded him $150,000 in damages. The
court of appeals affirmed, and the United States Supreme
Court granted certiorari.
b. Issue: Whether a public figure may recover damages for
intentional infliction of emotional distress without
showing actual malice.
c. Holding and Reasoning:
i. No. One of the rights of American citizenship is the
right to criticize public men and measures.
1. The result of this is that public officials and
public figures may sometimes be subject to
“vehement, caustic, and sometimes
unpleasantly sharp attacks.”
2. In terms of the tort of intentional infliction
of emotional distress, many states permit
civil liability when the conduct in question is
sufficiently outrageous.
a. However, in the world of debate
about public figures, the First
Amendment protects many things
done with far worse motives.
i. Thus, the First Amendment
prohibits assigning liability
for the tort of intentional
infliction of emotional
distress, without more, in
matters relating to public
officials and public figures.
ii. Holding otherwise would
unnecessarily assign
damages awards to political
cartoonists and satirists for
caricatures that inevitably
play up negative features of
their subjects.
ii. Falwell’s argument that the parody should
nevertheless be punishable because it is sufficiently
outrageous is rejected.
1. It is nearly impossible to articulate a
standard that separates outrageous
caricatures from others in the field of public
discourse.
 2. Falwell is properly described as a public
figure.
a. Thus, Falwell cannot recover
damages for the tort of intentional
infliction of emotion distress
without showing that the
publication was made with actual
malice. The decision of the court of
appeals is reversed.
d. Rule: Public officials and public figures may not recover
damages for intentional infliction of emotional distress
from a publication without showing that the publication
was made with actual malice.
2. Snyder v. Phelps
a. Facts: Fred Phelps (defendant), founder of the Westboro
Baptist Church (defendant), organized a picket and protest
of a military funeral held in Maryland. Phelps and several
members of his congregation stood holding signs outside
the Maryland State House, U.S. Naval Academy, and the
church where the funeral took place. The signs stated
phrases such as “Thank God for 9/11,” “America is
Doomed,” “Thank God for IEDs,” and “Thank God for Dead
Soldiers.” Albert Snyder (plaintiff), the father of the fallen
soldier, noticed the Westboro picketers but could not read
the content on the signs. Snyder filed suit against Phelps,
the church, and the other protestors (collectively
Defendants) in federal district court alleging five state tort
law claims including intentional infliction of emotional
distress (IIED). At trial, it was shown that Phelps had
notified local authorities in advance of the protest and had
complied with police instructions in staging the
demonstration. The protestors occupied a 10- by 25-foot
plot of public land approximately 1,000 feet from the
church where the funeral was held. There was no evidence
of violence, yelling, or other disruptive behavior during the
30 minute protest period before the funeral. Snyder
testified that although he did not see what was written on
the picketers’ signs, he had suffered severe depression and
emotional anguish. A jury found for Snyder on the IIED
claim an awarded him $2.9 million in compensatory
damages and $8 million in punitive damages. The district
court lowered the punitive damages amount to $2.1
million but affirmed the jury’s verdict in all other respects.
The Defendants appealed. The court of appeals reversed
 and held that the protest was protected by the First
Amendment. The U.S. Supreme Court granted certiorari to
review.
b. Issue: Is a church protesting a military funeral on public
land in a peaceful manner considered public speech
protected by the First Amendment?
c. Holding and Reasoning:
i. In Maryland, a plaintiff alleging a claim of
intentional infliction of emotional distress (IIED)
must demonstrate that the defendant intentionally
or recklessly engaged in extreme and outrageous
conduct that caused the plaintiff to suffer severe
emotional distress.
1. Here, Defendants claim that their right to
freedom of speech under the First
Amendment shields them from liability for
IIED.
2. Whether Defendants are liable turns on
whether the claimed speech is private or
public in nature. If the speech is public, the
First Amendment provides greater
protection than if the speech is private.
ii. Private speech typically does not implicate issues of
public importance that often warrant heightened
protection.
1. The Court has held that speech is of public
concern when it relates to any matter of
political, social, or other community
concern or when it is the subject of
legitimate news interest and value to the
public.
2. See Connick v. Myers, 461 U.S. 138, 146
(1983); San Diego v. Roe, 543 U.S. 77, 83-84
(2004).
a. Despite the arguable inappropriate
or controversial nature of the
content on the picket signs, the
issues they raise relate to matters of
public interest and concern.
iii. They highlight political and moral conduct of the
United States and its citizens.
1. Synder argues that because the protest
took place in connection with his son’s
 private funeral the speech is a matter of
private concern.
a. However, merely because the
Defendants protested a private
funeral does not by itself transform
the nature of the speech to a matter
of private concern.
iv. Although the speech hurt Snyder during a time of
personal loss, the church’s members picketed
peacefully 1,000 feet from the church on public
land.
1. Moreover, church members picketed public
sites like the Maryland State House and the
U.S. Naval Academy.
2. Even though public speech is protected by
the First Amendment, it is not limitless.
v. Public speech is still subject to reasonable time,
place, or manner restrictions and is not protected
when it occurs outside a personal residence or an
abortion clinic entrance. The judgment of the court
of appeals is affirmed.
d. Rule: A church protesting a military funeral on public land
in a peaceful manner is considered public speech
protected by the First Amendment.
e. Dissent: Alito
i. The majority’s rationale in shielding Defendants
from IIED liability is flawed.
ii. The Court concludes that the Defendants’ speech
centered on matters of public concern.
iii. However, when the protestors attack the character
of a deceased, private military figure to increase
publicity for the church’s views the statements are
not automatically public in nature.
iv. Moreover, the fact that the protest took place in a
public area is irrelevant.
v. There is no reason why a public street in close
proximity to the scene of a funeral should be
regarded as a free-fire zone in which otherwise
actionable verbal attacks are shielded from liability
under the guise of the First Amendment.
ii. Public Disclosure of Private Facts
1. Cox Broadcasting Corp v. Cohn, the Court held that civil liability
could not be imposed on a broadcaster who had released the
name of a deceased rape victim.
 2. Florida State v. B.J.F. The Court held that Florida could not make a
newspaper civially liable for publishing the name of a rape victim
that the newspaper had lawfully obtained from a police report
that was accessible due to police negligence.
3. Bartnicki v. Vopper. The Court struck down the two federal
statutes as applied to Vopper. Even though the laws were
content-neutral laws of general applicability, the government
failed to justify them under the applicable intermediate level of
scrutiny. While privacy of communication is an important interest
and the statutes served that interest by diminish the fear of public
disclosure of private conversation that might well have a chilling
effect on private speech, the statues, as applied, implicated the
core purposes of the First Amendment because they imposed
sanctions on the publication of truthful information of public
concern.
iii. Misappropriate of Expression
1. Harper & Row v. Nation Enterprises. The Court upheld an award
of damages to Harper & Row, the publisher of Ford’s memoir, for
copyright infringement. Because copyright protection extends
only to an author’s expression, but not to the ideas of the fact he
narrates, the Court concluded that the First Amendment imposed
no limit on liability for copyright infringement that involved
verbatim quotes from Ford’s memoir.
k. Content-Based Regulation of Speech
i. The Distinction Between Content-Based Regulation and Content-Neutral
Regulation
1. Content-based regulations are those that are aimed at the subject
matter of the speech.
2. View-point based regulations are merely a more sharply focused
subset of content-based regulations.
3. Content-neutral regulations are indifferent to the on the time,
place, or manner in which it occurs.
a. Content-based regulations are presumed to be void; the
government bears the burden of justifying them by
proving that they are necessary to achieve a compelling
public objective.
i. United States v. Playboy Entertainment – the court
invalidated the provision that stated to channels
primarily dedicated to sexually-oriented
programming either to fully scramble these
channels or limit their transmission to the hours
between 10 P.M. and 6 A.M.
l. Content-Neutral Regulations of Speech
 i. Regulation based on the content of speech is, of course, subject to strict
scrutiny.
1. But when governments regulate speech without reference to its
content a form of intermediate scrutiny generally applies.
2. But content-neutral regulations can also foreclose a great deal of
speech, though whether the regulation is motivated by censorship
or something else is harder to detect.
ii. Time, Place, and Manner of Speech
1. Ward v. Rock Against Racism
a. Facts: In close proximity to a bandshell was Sheep
Meadow, a grassy open area. New York City designated
Sheep Meadow as a quiet area for private recreations such
as reclining, walking, and reading. The bandshell was also
close to the apartments and residences of Central Park
West. As part of its attempt to regulate the volume of
amplified music at the bandshell, New York City requires
bandshell performers to use sound-amplification
equipment and a sound technician provided by the city.
Rock Against Racism (RAR) (plaintiff) was a sponsor of rock
concerts at the bandshell. RAR challenged the regulation
against Ward (defendant), a New York City official, in
federal district court on the grounds that the sound
equipment and technician requirements violated the First
Amendment. The district court upheld the requirements as
reasonable time, place, and manner regulations. The court
of appeals reversed, and the United States Supreme Court
granted certiorari.
b. Issue: Whether a city’s requirement regulating the certain
speech narrowly but not it the most narrowly possible way
violates the First Amendment?
c. Holding and Reasoning:
i. Even in a public forum the government may
impose reasonable restrictions on the time, place,
or manner of protected speech, provided the
restrictions “are justified without reference to the
content of the regulated speech, that they are
narrowly tailored to serve a significant
governmental interest, and that they leave open
ample alternative channels for communication of
the information.
1. This justification has nothing to do with
content and it satisfied the requirement
that time, place, or manner regulations be
content neutral.
 a. The city’s regulation is narrowly
tailored to serve a significant
governmental interest because
government has a substantial
interest in protecting its citizens
from unwelcome noise.
ii. Government may not regulate expression in such a
manner that a substantial portion of the burden on
speech does not serve to advance its goals.
d. Rule: Under the First Amendment, a regulation of the
time, place, or manner of protected speech must be
narrowly tailored to serve the government’s legitimate,
content-neutral interest, but does not need to the least
restrictive or least intrusive means of doing so.
e. Dissent: Marshall
i. A key safeguard of free speech has been
government’s obligation to adopt the least
intrusive restriction necessary to achieve its goals
until the today’s decision.
1. By abandoning this requirement of
narrowly tailoring, the majority replaces
constitutally scrutiny with mandatory
deference to decisions made by
government officials.
2. The guideline should have been invalidated
because it was not narrowly tailored to
serve the city’s interest in regulating loud
noise, and because it constituted an
impermissible prior restraint on speech.
2. Notes
a. Total Medium Bans. The Ward Court discusses Martin v.
Struthers and Schneider v. State, where total medium bans
were invalidated. Yet in Kovacs v. Cooper, the Court
upheld a ban on sound trucks, vehicles equipped with a
speaker and amplification devices to enable broadcasting
while moving though public streets.
b. Focused Protests.
i. Frisby v. Schultz, the Supreme Court upheld the
ordinances of a town ordinance banning picketing
before or about the residence of any individual.
ii. Hill v. Colorado, the Court upheld the law finding it
to be content-neutral and narrowly tailored to
accomplish the state’s significant interests of
protecting access to medical services, preserving its
 citizens from unwanted speech, and leaving open
ample alternative channels of communication.
3. McCullen v. Coakley
a. Facts: Massachusetts’ Reproductive Health Care Facilities
Act, originally passed in 2000, was amended in 2007 to
create a 35-foot buffer zone around reproductive health
care facilities. The Act was challenged by protestors at the
Planned Parenthood clinics in Boston, Worecester, and
Springfield, Massachusetts under the First and Fourteenth
Amendments.
b. Holding and Reasoning:
i. In a public forum the government may impose
reasonable restrictions on the time, place, or
manner of protected speech, provided the
restriction are justified without reference to the
content of the regulated speech, that they are
narrowly tailored to serve a significant
governmental interest, and that they leave open
ample alternative channels for communication of
the information.
ii. The Act has the inevitable effect of restricting
abortion-related speech more than speech on
other subjects. But a facially neutral law does not
become content based simply because it may
disproportionally affect speech on certain topics.
1. When selecting various options for
combating a particular problem, legislatures
should have encourages to choose the one
that restricts less speech, not more.
iii. The buffer zones burden substantially more speech
than necessary to achieve the Commonwealth’s
assented interest.
4. Notes
a. Content-Neutral Prohibitions on disclosure of Private
Communications of Matters of Public Concern
i. Bartnicki v. Vopper, The court struck down two
federal statues that, as applied, imposed criminal
and civil penalties on the disclosure of a private
communication intercepted illegally b a unknown
party but that was obtained lawfully by the person
making the disclosure.
iii. Expressive Condcut
1. United States v. O’Brien
a. Facts: In 1966, David Paul O’Brien and three others
(defendants) burned their Selective Service registration
certificates on the steps of the South Boston Courthouse.
O’Brien was indicted by the United States Government
(plaintiff), and convicted by the United States District
Court for the District of Massachusetts. The indictment
charged that he “willfully and knowingly did mutilate,
destroy, and change by burning his Registration
Certificate” in violation of the Universal Military Training
and Service Act of 1948 (UMTSA), as amended in 1965.
That act made it a crime for a person to forge, alter,
knowingly destroy, knowingly mutilate, or in any manner
change such a certificate. O’Brien appealed his conviction,
and the court of appeals reversed on the grounds that the
UMTSA violated the First Amendment. The United States
Supreme Court granted certiorari.
b. Issue: Whether a statute violates the First Amendment’s
protection of the freedom of speech if it prohibits certain
expressive conduct?
c. Holding and Reasoning:
i. O’Brien argues that the UMTSA as applied is
unconstitutional because his act of burning his
registration certificate is protected as symbolic
speech within the First Amendment.
1. However, conduct cannot be labeled
speech whenever the person engaging in
the conduct intends to express an idea.
However, even if O’Brien’s conduct does
constitute speech and thus implicates the
First Amendment, it does not necessarily
follow that the act of burning a registration
card is protected speech.
ii. The Court previously held that when speech and
non-speech elements are combined in the same
course of conduct, a sufficiently important
governmental interest in regulating the non-speech
element could justify incidental limitations on First
Amendment freedoms.
1. A government regulation is sufficiently
justified if (1) it is within the constitutional
power of the government; (2) furthers an
important or substantial governmental
interest; (3) if the governmental interest is
unrelated to the suppression of free
 expression; and (4) if the incidental
restriction on alleged First Amendment
freedoms is no greater than is essential to
the furtherance of that interest.
a. The UMTSA meets all of these
requirements, and thus O’Brien can
be constitutionally convicted for
violating it.
b. The governmental interest is
Congress’s constitutional ability to
classify individuals for military
service.
c. The issuance of certificates
indicating the registration and
eligibility classification of individuals
is a legitimate and substantial
administrative aid in the functioning
of this system.
i. As such, legislation to insure
the continued availability of
issued certifications (such as
the UMTSA) serves a
legitimate and substantial
purpose in the system’s
administration. The
destruction or mutilation of
these certificates would
defeat these purposes in
several ways.
iii. Firstly, the registration certificate serves as proof
that an individual has actually registered for the
draft. If it were destroyed, it would be difficult to
verify registration.
iv. Secondly, the contact information supplied on the
certificates facilitates communication between
registrants and their local boards.
1. This simplifies the system, and the
destruction of these cards would make
communication more difficult.
v. Thirdly, certificates carry continual reminders that
the registrant must notify his local board of any
change in contact information.
1. This insures that the local boards stay
informed about registrants, and the
 destruction of certificates deprives the
system of a potentially useful notice device.
vi. Finally, the regulatory scheme involving Selective
Service certificates includes clearly valid
prohibitions against the alteration, forgery, or
similar deceptive misuse of certificates.
1. The destruction or mutilation of certificates
increases the difficulty of detecting or
tracing these abuses, and increases the risk
that mutilated certificates might be used for
deceptive purposes.
a. Thus, the government’s substantial
interest in assuring the continued
availability of issued Selective
Service certificates is sufficient to
justify O’Brien’s conviction.
b. O’Brien’s argument that Congress’s
purpose for the UMTSA is to
suppress freedom of speech is
rejected, as courts are required to
provide deference to Congress’s
motives.
2. The UMTSA, as amended in 1965 is
constitutional and the decision of the court
of appeals is reversed.
d. Rule: When speech and non-speech elements are
combined in the same course of conduct, a sufficiently
important governmental interest in regulating the non-
speech element could justify incidental limitations on First
Amendment freedoms.
2. Notes
a. Unrelated to the Suppression of Free Expression
i. A pivotal prong of the O’Brien test is the
requirement that the government’s regulatory
interest be unrelated to the suppression of free
expression.
1. If it is not, strict scrutiny applies unless the
suppressed speech is unprotected and the
regulation is viewpoint-neutral.
3. Texas v. Johnson
a. Facts: After publicly burning an American flag as a means
of political protest, Gregory Lee Johnson (defendant) was
convicted by the State of Texas (plaintiff) for desecrating a
flag in violation of Texas law. Johnson challenged his
 conviction in state court on the grounds that the law
violated his First Amendment right to freedom of speech.
The Texas Court of Criminal Appeals reversed the
conviction, and the United States Supreme Court granted
certiorari.
b. Issue: Whether a Texas statute that criminalized the
burning of an American flag as a means of political
protests violates the First Amendment.
c. Holding and Reasoning: Brennann
i. It is necessary to consider whether flag burning
constitutes expressive conduct, which permits
Johnson to invoke his First Amendment rights in
challenging his conviction.
1. If Johnson’s conduct is classified as
expressive, it is necessary to determine
whether the state’s regulation is related to
the suppression of free expression.
2. If Johnson’s conduct is not classified as
expressive, the Court must apply the
analysis for regulations of non-
communicative conduct outlined in United
States v. O’Brien, 391 U.S. 367 (1968).
a. Thus, to decide whether the O’Brien
test applies, it is necessary to
determine whether Texas asserts an
interest in support of Johnson’s
conviction that is unrelated to the
suppression of expression.
ii. Texas stated that its two interests are preventing
breaches of the peace and preserving the flag as a
symbol of nationhood and national unity.
1. The first interest is inapplicable to the
present case, as no disturbance of the
peace actually occurred or threatened to
occur due to Johnson’s flag burning.
2. The second interest is related to the
suppression of expression.
a. Texas is concerned that flag burning
would lead people to believe either
that the flag does not stand for
nationhood and national unity, or
that concepts reflected in the flag do
not actually exist (namely, that the
nation is not unified).
 iii. As these concerns relate to the suppression of
expression contained in flag burning, O’Brien’s test
for non-communicative conduct does not apply.
1. Since Johnson was prosecuted for his
expression of dissatisfaction with the
policies of his country, the state’s asserted
interest in preserving the special symbolic
character of the flag is subject to the most
exacting scrutiny.
a. Nothing in the Court’s precedents
suggest that a state can promote its
own view of the flag by prohibiting
related expressive conduct.
iv. The enduring principle that the government cannot
prohibit expression it disagrees with does not
depend on the particular method by which one
seeks to express an idea.
1. It would thus be inconsistent to hold that
an individual can constitutionally express
disagreement with a political viewpoint in
any way except flag burning.
a. Additionally, it does not make sense
to permit a state to allow flag
burning for some purposes and not
for others, as this principle has no
discernible or defensible
boundaries.
i. Thus, Johnson’s conviction
for burning the flag as a
means of political expression
cannot be supported by the
First Amendment.
v. This holding does not weaken the status of the flag
in American society, but rather strengthens it as a
symbol of the freedom of expression upon which
the United States democratic system of governance
is founded.
d. Rule: Under the First Amendment, a state may not
criminalize the burning of the American flag as a means of
political protects.
iv. Indecent Speech, Broadcasting, and Captive Audiences
1. FCC v. Pacifica Foundation
a. Facts: A satiric humorist named George Carlin (Carlin)
recorded a 12-minute monologue entitled “Filthy Words”
 before a live audience in a California theatre. Carlin began
by referring to his thoughts about the words that could
not be said on the public airwaves. Then, Carlin proceeded
to list those words and repeat them over and over again.
b. Issue: Whether the Petitioner has any power to regulate a
radio broadcast that is indecent but not obscene?
c. Holding and Reasoning:
i. It is not necessary for the Petitioner to determine
that a communication is obscene before it may
exercise its regulatory power.
1. The Petitioner can use its regulatory power
to channel indecent material to times when
children are not able, or much less likely, to
receive it.
ii. The Court stated that the FCC had the authority to
prohibit such broadcasts during hours when
children were likely to be among the audience, and
gave the FCC broad leeway to determine what
constituted indecency in different contexts.
1. Pacifica argues that the FCC’s construction
of the applicable statutory language
encompasses an excessive amount of
constitutionally protected speech that
reversal is required even if Pacific’s
broadcast is not protected by the First
Amendment.
2. Secondly, Pacifica argues that because the
recording is not obscene, the Constitution
forbids any abridgement of the right to
broadcast it on the radio.
iii. The first argument fails because the Court’s inquiry
is necessarily limited to whether the FCC has the
authority to proscribe the particular broadcast at
issue.
1. Thus, Pacifica’s general allegation that the
FCC’s statutory construction is overbroad is
not considered.
iv. The second argument inquires into whether the
First Amendment denies government the power to
restrict public broadcast of indecent language in
any situation.
1. The fact that speech might be considered
offensive is not a sufficient reason for
suppressing it.
 v. The purpose of the First Amendment is to ensure
that the government remains neutral in the
marketplace of ideas. If the Carlin monologue had
any redeeming social or political value, the speech
would likely have been protected by the First
Amendment.
1. However, this is not the case. Even though
the words used by Carlin are not obscene,
they are still offensive in the same way
obscenity is offensive. The words lack
literary, political, or scientific value, and
thus are likely unprotected by the First
Amendment.
a. However, even unprotected speech
cannot be regulated without limit.
Ultimately, the protected status of
speech depends at least in part on
the circumstances in which the
speech is made. The offensive
speech was made in a public radio
broadcast.
vi. Traditionally, broadcasts receive the least amount
of First Amendment protection because they
involve content streamed into peoples’ homes.
Thus, if content is offensive, it possibly violates the
individual’s right to be left alone and free from
exposure to public content.
1. It is not enough that listeners may turn off
radio broadcasts when they hear offensive
speech, as the damage is already done at
that point.
a. Broadcasting is not highly protected
by the First Amendment because it
is uniquely accessible to children.
Even children can pick up on
offensive speech and possibly add it
to their vocabularies.
d. Rule: The FCC may regulate speech used in broadcasting,
even if the speech is merely offensive and not obscene,
because of the pervasive nature of radio broadcasting.
2. Notes
a. Captive audience
i. Rowan v. US Post Office Department, the Court
upheld a federal law permitting recipients of
 advertisements for material “which the addressee
in his sole discretion believes to be erotically
arousing or sexually provocative” to require the
Postal Service to stop all future mailing to the
recipient form an identified mailer.
b. Vulnerable audience.
i. Ginsberg v. New York, the Court upheld restrictions
on the distribution of non-obscene pornography to
miners, conceding that the same restrictions would
not be valid if applied to distribution to adults.
c. Low-Value Speech
i. Sable Communications, Inc. v. FCC, the Court
invalidate a portion of the Federal Communications
Act that made it a crime to transmit indecent
telephone messages. While the Court recognized
the government’s interest in shielding children
from such message, the Court concluded that a
total ban on indecent but protected speech was
unjustified, especially because there are less
restrictive alternative methods to screen out
juvenile callers.
d. Broadcasting
m. The Secondary Effects Doctrine
i. The essence of the secondary effects doctrine is that governments may
regulate speech by its content if its purpose for doing so is wholly
unrelated to that content, but its instead designed to ameliorate some
phenomenon closely associated with but not produced by the content of
the speech.
ii. City of Renton v. Playtime Theaters, Inc.
1. Facts: The City of Renton (defendant) enacted a zoning ordinance
that prohibited adult motion picture theaters from locating within
one thousand feet of any residential zone, single- or multiple-
family dwelling, church, park, or school. Theaters were defined as
“adult” if they distributed media depicting, describing, or relating
to “specified sexual activities” or “specified anatomical areas” for
observation by patrons. Playtime Theatres, Inc. (plaintiff) was an
adult theater that sought to challenge the ordinance as an
unconstitutional restriction of First Amendment speech. It
brought suit in district court against the City of Renton. The
district court entered summary judgment for the City on the
grounds that the ordinance was constitutional. The court of
appeals reversed, and the City of Renton appealed to the United
States Supreme Court.
2. Issue: Whether a city can enact zoning ordinances that prohibited
the operation of adult motion picture in certain locations violate
the First Amendment?
3. Holding and Reasoning:
a. The Renton ordinance does not ban adult theaters
completely, but rather provides that such theaters cannot
be located within one thousand feet of any residential
zone, single- or multiple-family dwelling, church, park, or
school. The ordinance should be considered a form of
time, place, and manner regulation.
b. The Supreme Court has long held that regulations
restricting speech based on its content violates the First
Amendment. However, “content-neutral” time, place and
manner regulations are acceptable so long as they are
designed to serve a substantial governmental interest and
do not unreasonably limit alternative avenues of
communication.
c. The Renton ordinance can properly be considered
“content-neutral” because it is not aimed at the content of
films shown at “adult motion picture theaters,” but rather
at the secondary effects of adult theaters on the
surrounding community.
i. Such “secondary effects” include increased crime
and traffic in areas relating to the theater’s
business.
ii. Because it is content-neutral, the Renton ordinance
should be designed to serve a substantial
governmental interest and allow for reasonable
alternative avenues of communication that are
content-neutral.
1. It is clear that the ordinance meets this
standard, as many areas exist within the
city where theaters could locate without
violating the ordinance.
a. Thus, the ordinance is constitutional
and the decision of the court of
appeals is reversed.
4. Rule: Content-neutral time, place, and manner regulations are
acceptable under the First Amendment so long as they are
designed to serve a substantial governmental interest and do not
unreasonbly limit alternative avenues of communication.
5. Dissent
a. The City of Renton’s ordinance is actually content-based
because it selectively imposes limitations on the locating
 of a move theater based exclusive no the content of the
films shown there.
n. Commercial Speech
i. Virginia Board of Pharmacy v. Virginia Citizens Consumer Council
1. Facts: A Virginia State statute prohibited the advertisement of
prescription drug prices. The Virginia Citizens Consumer Council,
Inc. (VCCC) (plaintiffs) brought suit in federal district court against
the Virginia State Board of Pharmacy (VSBP) (defendants) on the
grounds that the statute violated the First and Fourteenth
Amendments. The district court agreed, and the VSBP appealed to
the United States Supreme Court.
2. Issue: Whether a Virginia State statute prohibiting the
advertisement of prescription drug prices violates the First
Amendment?
3. Holding:
a. The VSBP argues that the advertising ban is constitutional
because it regulates only commercial speech.
i. This argument is based on the Court’s previous
decision in Valentine v. Christensen, 316 U.S. 52
(1942), which held that the government could
regulate commercial speech.
1. However, Valentine was overruled by
Bigelow v. Virginia, 421 U.S. 809 (1975),
where the Court rejected the notion that
speech is unprotected simply because it is
commercial. T
2. his reasoning is controlling to the
government regulation of the publication of
prescription drug prices.
b. Speech clearly does not lose its First Amendment
protection simply because money is spent to project it, as
in a paid advertisement of some form.
i. Additionally, the fact that the advertiser’s interest
in projecting the speech is purely economic does
not disqualify the speech from First Amendment
protection.
c. Consumers have a keen interest in the free-flow of
commercial information; often times even more so than in
political debates.
d. Society in general also has a strong interest in the free
flow of commercial information.
i. Protecting this type of public interest in
information is one of the primary purposes of the
First Amendment. VSBP argues that Virginia’s
 advertising ban is necessary to maintain
professionalism among pharmacists.
1. However, this argument is rejected because
of the high professional standards already
in place to govern pharmacists by the
state’s regulatory boards.
2. Additionally, the advertising ban does not
directly affect professional standards for
pharmacists, as it has no impact on the
ability of pharmacists to perform their
duties.
a. Thus, there is no reason to hold that
the First Amendment does not
protect commercial speech of this
variety. However, this does not
mean that commercial speech can
never be regulated in any way.
e. For example, false advertisements and advertisements for
illegal commercial activities are not protected.
i. However, because neither of those categories of
speech is at issue, the Virginia ban on commercial
advertising of prescription drug prices is an
unconstitutional infringement on the freedom of
speech protected by the First Amendment.
4. Rule: The First Amendment protects commercial speech relating
to the advertisement of prescription drug prices.
ii. Central Hudson Gas & Electric Corp. v. Public Service Commission
1. Facts: In December 1973, the Public Service Commission of New
York (PSC) (defendant) ordered electric utilities in New York to
cease all advertising that promoted the use of electricity. This was
based on the PSC’s finding that New York did not have sufficient
fuel resources to continue furnishing customers’ demands for
electricity during the winter months. Three years later, after the
fuel shortage ceased, the PSC requested comments from the
public on its proposal to continue the ban on promotional
advertising. Central Hudson Gas & Electric Corporation (CHGEC)
(plaintiff) opposed the ban on First Amendment grounds. After
reviewing public comments, the PSC extended the prohibition
until 1977. CHGEC brought suit in state court seeking to overturn
the prohibition on First Amendment grounds. The state court
upheld the prohibition, and the court of appeals affirmed. CHGEC
appealed to the United States Supreme Court.
2. Rule: if commercial speech is neither misleading nor unlawful, the
government may only prohibit if doing so advances a substantial
 government interest, and the limits on expression are narrowly
tailored to achieve that interest.
iii. 44 Liquormart, Inc. v. Rhode Island
1. Fact: The State of Rhode Island (defendant) passed a statute
prohibiting advertisements that provide the retail prices of
alcoholic beverages. 44 Liquormart (plaintiff) brought suit in
federal district court challenging the statute as a violation of
freedom of speech under the First Amendment. The district court
held the statute unconstitutional, but the court of appeals
reversed. The United States Supreme Court granted certiorari.
2. Rule: Under the First Amendment, a state may not
constitutionally prohibit the advertising of prices of alcoholic
beverages.
V. Chapter XI: State Action and the Power to Enforce Constitutional Rights
a. State Action
i. The Public Function Doctrine
1. Marsh v. Alabama
a. Facts: The town of Chickasaw, Alabama was owned by the
Gulf Shipbuilding Company (the Company), a private
corporation. With the exception of its private ownership,
the town operated as any other and was closely bordered
by and virtually indistinguishable from surrounding
municipalities. Marsh (defendant) was a Jehovah’s Witness
who stood on a Chickasaw sidewalk owned by the
Company and proceeded to distribute religious literature.
She was told she could not distribute literature without a
permit and that no permit would be issued to her. When
she protested, she was arrested and charged with violating
Alabama (plaintiff) state law. She argued that her activities
were protected under the First and Fourteenth
Amendments, but her argument was rejected and she was
convicted. Marsh appealed to the United States Supreme
Court
b. Issue: May a privately-owned town deny traditional first
and fourteenth amendment protections of speech and
religion to individuals?
c. Holding:
i. If Marsh had actually been on the public sidewalk
of a municipality, her conviction would certainly
have been reversed because states may not
completely prohibit the distribution of religious
literature in public areas under the First and
Fourteenth Amendments.
 1. However, in the present case Alabama
contends that the Company’s ownership of
the town gave it certain property interests
which allowed it to control the activities of
its inhabitants.
ii. Regardless of whether a corporation or a
municipality owns the town, the public it allows in
has an identical interest in the town’s functionality
and the freedom of communication within its
borders.
iii. Alabama cannot suspend people’s First and
Fourteenth Amendment rights while they are
located in the town because the Company has
opened up the town to the public, and many
residents from other surrounding areas frequently
use the town for commercial purposes. In
balancing the interests of the Company as property
owners, with the interests of the people in
freedom of press and religion, the latter are more
important.
iv. Alabama acted unconstitutionally in assigning
criminal sanctions to Marsh, and the decision of
the lower court is reversed.
d. Rule: The First and Fourteenth Amendment protections of
speech and religion apply to individuals when operating in
a privately-owned town if the town is open to the public
purposes.
e. Concurrence:
i. The majority opinion states that the Commerce
Clause might provide useful guidance for resolving
the issues involved in the case.
ii. However, it is not useful or necessary to look to the
Commerce Clause when deciding a First
Amendment issue. The text of the First and
Fourteenth Amendments are sufficient for the
majority to rely on in its reasoning.
f. Dissent:
i. The majority does not give proper weight to the
property interests of the Gulf Shipbuilding
Company at stake in the case.
ii. Certain constitutional limitations already exist
regarding the time, place, and manner of the
exercise of religion, speech, and press.
 1. These limitations suggest that the freedoms
outlined in the First and Fourteenth
Amendments are not absolute, but can be
reasonably balanced against other interests.
Property rights are also highly protected in
the Constitution, and the majority should
not have protected Marsh’s activity of
trespassing on the company’s property just
because she was trespassing in the name of
freedom of speech or religion.
2. Jackson v. Metropolitan Edison Co.
a. Facts; Metropolitan Edison Co. (Edison) (defendant) was a
privately owned and operated electricity company that
was authorized by the Pennsylvania Public Utility
Commission to deliver electricity to York, Pennsylvania and
surrounding areas. It was subject to extensive regulation
by the Commission and was granted approval by the
Commission to discontinue service to any customer on
reasonable nonpayment of bills. Catherine Jackson
(plaintiff) was a resident of York and customer of Edison.
She defaulted on her bill payments and had her service
disconnected, but convinced Edison to reinstate it under
the name of James Dodson, another resident in her home.
However, when Dodson moved out of the home and
Jackson continued to default on the payments, Edison
visited the premises and attempted to collect payment.
Jackson requested that the service be reinstated under
another name which Edison later discovered was that of
her twelve-year-old son. Edison disconnected Jackson’s
service four days later with no other notice. Jackson
brought suit in district court alleging that under the Due
Process Clause of the Fourteenth Amendment, she could
not be deprived of electricity service without adequate
notice and a hearing before an impartial body. The district
court dismissed the case because it found no state action
present, and the court of appeals affirmed. The United
States Supreme Court granted certiorari.
b. Issue: Whether the Due Process Clause of the Fourteenth
Amendment restricts the actions of a privately-owned
electricity company.
c. Holding:
i. No. The law is clear on the fact that state actions
are subject to constitutional regulations and
private actions are not, but it is often difficult to
 determine which actions are truly “state” and
which are “private.”
ii. The fact that Pennsylvania granted a monopoly to
Metropolitan Edison over its service area is not
enough to show that the private company was
acting as the state.
1. Additionally, it is overbroad to hold that
every action of a state-regulated business
provides an essential public service, or
serves the public interest in some way that
is somehow converted into state action.
2. An action of a private entity would only be
treated as state action if there is a
sufficiently close nexus between the state
and the challenged action of the private
entity so that the action of the latter may
be fairly treated as that of the state itself. In
the present case, the State of Pennsylvania
is not sufficiently connected with
Metropolitan Edison’s action in terminating
Jackson’s service so as to make the action
fairly attributable to Pennsylvania.
3. The decision of the court of appeals is
affirmed.
d. Dissent: Douglas
i. The majority should have considered the aggregate
of factors present in the relationship between
Metropolitan Edison and Pennsylvania—not single
factual circumstances—in determining whether
their actions were public or private.
ii. Additionally, Jackson should have brought this suit
under a Section 1983 which specifically permits a
private individual to sue a state that either, directly
or indirectly, allows a private entity to perpetuate a
wrong that infringeson an individual’s
Constitutional rights.
e. Dissent: Brennan
i. No actual live controversy exists between Jackson
and Edison. Under its regulations from the State of
Pennsylvania, Metropolitan Edison is required to
provide electricity to “customers,” which are
defined in the regulations as “any persons lawfully
receiving service from the company.” Jackson
ceased to lawfully receive service when she
 stopped paying her bills, and thus Metropolitan
Edison owed her no legal obligation. This case
should have been dismissed on that basis.
f. Dissent: Marshall
i. A variety of factors exist that make the actions of
Metropolitan Edison sufficiently close to
Pennsylvania so they could be fairly attributed to
Pennsylvania itself.
1. Firstly, Edison provides an essential, public
service to people in York, and it is the only
entity authorized to do so in that area.
Additionally, Edison is subject to significant
state regulations and has a long history of
cooperation with Pennsylvania.
2. Most importantly, Pennsylvania has actually
granted its approval to Edison’s particular
method of service termination—the action
at issue in the present case.
3. The lower court’s decision should be
overturned as precedent suggests that
approval from a state is sufficient to
transform private conduct into state
conduct.
ii. Inextricable Entanglement
1. Burton v. Wilmington Parking Authority
a. Facts: Burton (plaintiff), an African American man, brought
suit against Wilmington Parking Authority (WPA)
(defendant), operator of an off-street automobile parking
building, on the grounds that the Eagle Coffee Shoppe,
Inc., a restaurant located in WPA’s building, refused to
serve Burton food or drink solely because he was African
American. The Supreme Court of Delaware held that the
restaurant’s actions did not constitute state action and
denied relief to Burton. Burton appealed to the United
States Supreme Court.
b. Issue: Must a private business, leasing property from a
publicly-owned building, comply with the Fourteenth
Amendment’s prohibition on discriminatory conduct?
c. Holding:
i. Yes. The Wilmington Parking Authority was created
by statute to provide for the public parking needs
of citizens of Wilmington, Delaware.
ii. The WPA entered into a long-term lease with Eagle
Coffee Shoppe, Inc. to help defray some of its
 operating costs, but the majority of the
construction and maintenance costs of the WPA
were paid for by public funds.
1. The Civil Rights Cases, 109 U.S. 3 (1883),
firmly establish that the Equal Protection
Clause of the Fourteenth Amendment
prohibits race-based discrimination by state
actors.
iii. The WPA and the restaurant mutually contribute to
each others’ success, as the former provides
convenient parking for the restaurant’s patrons,
and the latter provide revenue for the WPA.
iv. Race-based discrimination is prohibited in the
WPA’s services, and it would be a grave injustice to
prohibit discrimination in most of the parking
structure while allowing discrimination in the part
of the building occupied by the restaurant.
v. The WPA’s failure to affirmatively require the
restaurant to end discriminatory practices, in
essence, makes it a party to the discrimination. The
WPA’s inaction constitutes support of
discrimination by a state actor.
vi. As this is strictly prohibited by the Fourteenth
Amendment, the decision of the Supreme Court of
Delaware is reversed and remanded.
d. Rule: When a state leases public property to a private
entity and forms a relationship of interdependence with
that entity, the private lessee must comply with the
Fourteenth Amendment’s prohibition of discriminatory
conduct.
e. Concurrence: Stewart
i. The unconstitutionality of a state statute relied on
by the Delaware Supreme Court should have been
the basis for this judgment.
ii. The statute at issue permits a restaurant owner to
refuse service to a person because of his or her
race. As this statute clearly violates the Equal
Protection Clause of the Fourteenth Amendment,
the restaurant’s actions could have been
invalidated on that ground.
f. Dissent: Frankfurter
i. The majority’s decision to remand the case to
determine the Delaware Supreme Court’s intent in
 relying on what appeared to be a discriminatory
state statute is wrong.
ii. The statute is ambiguous and merely a restatement
of common law; not an actual state sanction of
discriminatory activity as is suggested by Justice
Stewart’s concurrence.
iii. The United States Supreme Court prematurely
considered the constitutional issue before a
definitive ruling was given regarding the intent of
the state statute.
g. Dissent: Harlan
i. The majority prematurely decided whether there
was state action in this case.
ii. The case should have been remanded for a further
determination of the Delaware Supreme Court’s
basis for its opinion that no state action existed.
iii. If the Delaware Supreme Court construed the
state statute on which it relied as authorizing
discriminatory conduct, then the case should be
decided according to Justice Stewart’s
concurrence.
1. However, if the Delaware Supreme Court
only sees the statute as a restatement of
common law and not an express
authorization of discriminatory conduct,
then it is improper for the majority to
conclude that state action occurred. In
essence, the majority acted prematurely in
finding state action.
2. Brentwood Academy v. Tennessee Secondary School Athletic
Association
a. Facts: Tennessee Secondary School Athletic Association
(Association) (plaintiff) was a non-profit private
membership corporation organized to regulate
interscholastic sports among public and private high
schools in Tennessee that were members of the
Association. Although schools were not forced to join,
almost all of the state’s public schools, and many of its
private schools were members as there was no other
interscholastic sports regulatory authority in the state. The
Tennessee State Board of Education even recognized the
Association as the primary regulatory agency in the state
for high school sports, and their voting membership was
almost exclusively composed of public high school
 administrators. In 1997, the Association brought a
regulatory enforcement proceeding against Brentwood
Academy (defendant), a private member school.
Brentwood was charged with improperly recruiting new
students for its sports teams, and was given a large fine
and suspension by the Association. Brentwood Academy
then sued the Association after sustaining these penalties
in federal court under 42 U.S.C. § 1983, alleging that
enforcement of the recruitment rule against it was a state
action and a violation of the First and Fourteenth
Amendments to the United States Constitution. The
district court entered summary judgment for Brentwood
Academy, but the court of appeals reversed. The United
States Supreme Court granted certiorari.
b. Issue: Whether a private statewide association
incorporated to regulate interscholastic athletic among
public and private secondary schools engaged in state
action when it enforced a recruiting rule against a member
school?
c. Holding:
i. Yes. This line of cases requires a balance between
not subjecting a state to needless liability for
private actions, and also holding a state
accountable when it could be said to have
sufficiently acted through a private entity.
1. It is necessary to look at the totality of the
circumstances to determine whether an
action is public or private.
ii. In NCAA v. Tarkanian, 488 U.S. 179 (1988), no
state action was found on the part of Nevada when
the National Collegiate Athletic Association (NCAA)
recommended that the University of Nevada
suspend its basketball coach.
1. In the present case, dicta from Tarkanian is
relied upon in guiding the decision. The
court stated, in dicta, that state action
would have been found in that case if the
NCAA was composed of member schools
that were all within a single state, as many
of those would have been public
institutions created by the same sovereign.
a. The situation referred to in
Tarkanian is identical to the present
case. Eighty-four percent of the
 Association’s schools are public, and
all are located within Tennessee.
b. Additionally, the majority of its
voting members are public school
administrators or members of the
State Board of Education, and the
Association’s own employees are
subject to state pension plans.
c. These facts make the State of
Tennessee so entwined with the
Association as to transform the
Association’s actions into state
action. The decision of the court of
appeals is reversed.
d. Rule: An action taken by a private regulatory association
within a state that is composed of public school members
and governed by public school administrators constitutes
state action for purposes of the Fourteenth Amendment
because the state is sufficiently entwined with the
private association.
e. Dissent:
i. he Court has never previously found state action
from the concept of “entwinement.”
ii. Neither common sense nor the application of its
precedent tests for state action justify the
majority’s result. In terms of common sense, there
is no requirement of public school membership by
the Association.
1. Additionally, there is no requirement that
the board members be public school
administrators; it is merely coincidental that
they are in the present case.
2. Additionally, the State of Tennessee has no
actual involvement in enforcing the
recruitment rule at issue.
3. Rather, the rule is enforced entirely by a
private actor. As to precedent tests, the
Association does not perform a function
that had been “traditionally, exclusively
reserved to the state.” This is because the
Tennessee government has neither a desire
to nor a history of regulating interscholastic
sports. Additionally, Tennessee has not
“exercised coercive power or provided such
 significant encouragement [to the
Association], either overt or covert,” that
their regulatory activities must in law be
deemed to be those of the state. Tennessee
does not regulate the Association in any
way, and it only received four percent of its
total funding from the state so there is no
fiscally “symbiotic” relationship between
the two. The majority announces an
unprecedented and unsupported rule that
state action can be found by mere
“entwinement” of the state with a private
entity. The majority does not define
“entwinement” and thus the theory will be
difficult to apply in future cases. As there is
no state action present, the decision of the
court of appeals should be upheld.
3. Shelly v. Kraemer
a. Facts: In 1911, thirty property owners on a street in St.
Louis, Missouri signed and recorded a restrictive covenant,
which provided that no races other than Caucasians were
welcome as tenants on the property for the next fifty
years. In 1945, the Shelleys (defendants), a black family,
bought a house on one of the restricted parcels of land
without knowledge of the restrictive covenant. The
Kraemers and other white property owners (plaintiffs) in
the subdivision brought suit in circuit court to enforce the
covenant, seeking to enjoin the Shelleys from taking
possession and divest them of title to the property. The
circuit court denied relief to the defendants on the ground
that the restrictive covenant was incomplete, because not
all property owners in the subdivision had signed. The
Supreme Court of Missouri, en banc, reversed and directed
the trial court to enter judgment for the defendants,
concluding that the covenant was valid and enforcement
was constitutional. The case was consolidated with a
substantially similar case from Michigan before the United
States Supreme Court, which granted certiorari to
determine whether the Equal Protection Clause prohibits a
state's courts from enforcing racially restrictive covenants.
b. Issue: Does the enforcement of a racially restrictive
covenant by a state court amount to state action in
violation of the Equal Protection Clause?
c. Holding:
 i. Yes. State court enforcement of racially restrictive
covenants constitutes state action, which violates
the Equal Protection Clause of the Fourteenth
Amendment.
ii. That Clause guarantees equal treatment of all
people under the law, including in their exercise of
various property rights.
iii. There is no question that restrictive covenants that
discriminate solely on the basis of race would be
invalid on equal protection grounds if created by a
state or local law. See Buchanan v. Warley, 245 U.S.
60 (1917).
iv. The issue here is whether state court enforcement
of racially restrictive covenants entered into by
private actors constitutes state action. The
Fourteenth Amendment does not apply to purely
private discrimination. See The Civil Rights Cases,
109 U.S. 3 (1883).
v. Thus, people are free to enter into and voluntarily
abide by racially restrictive covenants.
Nevertheless, the Court has long held that the
actions of state courts and judicial officers are state
actions within the meaning of the Fourteenth
Amendment. See Labor v. Swing, 312 U.S. 321
(1941).
vi. Improper state action does not only occur when a
court practices unfair procedures. A court is also a
state actor when it enforces a substantive rule that
violates individual rights under the Fourteenth
Amendment.
1. In this case, state court enforcement of the
restrictive covenants against the Shelleys
would deny them equal protection in the
exercise of their property rights.
2. States may not “ma[k]e available…the full
coercive power of government” to allow
private individuals to deny the Shelleys’
rights on the basis of race.
3. The highest courts of Missouri and Michigan
gave effect to these discriminatory
provisions on the basis of state common
law. There was state action here, and
judicial enforcement of the racially
restrictive covenants violated the Equal
 Protection Clause. The rulings of the state
courts are reversed.
d. Rule: State court enforcement of a racially restrictive
covenant constitutes state action that violates the Equal
Protection Clause of the Fourteenth Amendment.
4. Reitman v. Mulkey
a. Facts: n 1964, California voters, by initiative and
referendum in Proposition 14, passed Article I, § 26 as an
amendment to the California Constitution. Article I, § 26
prohibited the State of California from making any laws
that prohibited the right of property owners to
discriminate against potential renters for any reason. The
Mulkeys (plaintiffs) were a husband and wife who sued the
Reitmans (defendants) under §§ 51 and 52 of the
California Constitution alleging that the Reitman’s refused
to rent them an apartment solely on account of their race.
Sections 51 and 52 of the California Constitution
prohibited race-based discrimination in property rentals.
The Reitmans argued that §§ 51 and 52 were made null
and void after passage of Article I, § 26 through
Proposition 14. The California Supreme Court found that
Proposition 14 impermissibly entangled the State of
California in private discriminations and held Article I, § 26
unconstitutional. The United States Supreme Court
granted certiorari.
b. Issue: May a state overturn an amendment to its
constitution passed by initiative and referendum if the
amendment encourages racial discrimination?
c. Holding:
i. Yes. The California Supreme Court did not hold
Proposition 14 to be a per se violation of the
United States Constitution simply because it
repealed anti-discrimination statutes.
ii. Instead, the California Supreme Court determined
that California was not required to have a statute
that prohibited racial discrimination and that the
state could properly elect to remain neutral on the
issue.
iii. The California Supreme Court also determined that
the intent of Article I, § 26 was to create an express
right of private, race-based discrimination in the
California Constitution.
iv. Finally, the California Supreme Court determined
that the creation of this express right invalidly
 involved the state in private discriminations in a
manner contrary to the Equal Protection Clause of
the Fourteenth Amendment.
v. California properly concluded that Article I, § 26
would have a much greater impact on state policy
than simply repealing existing anti-discrimination
statutes.
vi. The amendment actually creates an express right in
the California Constitution to privately discriminate
on the basis of race because Article I,§ 26 actually
wrote discrimination into the state’s charter. The
decision overturning the amendment is affirmed.
d. Rule: A state may remove an amendment to its
constitution by initiative and referendum if the proffered
amendment encourages or promotes discrimination in
violation of the Equal Protection Clause of the 14th
Amendment.
e. Dissent:
i. The majority’s decision actually harms progress in
the delicate area of race relations. Proposition 14
was created as an initiative by California voters in
response to anti-discrimination statutes affecting
property sales. Passing this initiative actually
repealed prior legislation. This ran no more afoul of
the Fourteenth Amendment than if California had
never passed the anti-discrimination laws in the
first place. Article I, § 26 was not a product of
coercive state action, but was passed by the most
democratic of processes, an initiative and a
referendum by voters. The amendment in no way
amounts to an affirmative call by the state to
discriminate. This case differs from previous cases
where impermissible state action was found
because in those cases, the state was actively
involved in discrimination. In contrast, in the
present case, the State of California simply chose
to remain neutral in the racial discrimination
debate. This is a constitutionally permissible
position for California to adopt. The majority’s
decision will make it harder to pass anti-
discrimination laws in the future, because
opponents of those laws can now argue that if
enacted, they might be unable to be repealed. Any
statements or decisions governing race relations
should come from the state legislature and not the
courts. The decision of the California Supreme
Court should be reversed.