Constitutional Law II

Professor Cox-Alomar
Spring 2021
Outline

“We conclude that in the field of public education the doctrine of ‘separate but equal’ has no
place. Separate educational facilities are inherently unequal.”
– Chief Justice Warren, Brown v. Board.

I. THE BILL OF RIGHTS AND THEIR INCORPORATION TO THE STATES

UNDER THE 14TH AMEND.

RULE: Justice Cardoza outlined that selective Incorporation is a principle of justice so rooted in
the traditions and conscience of our people as to be ranked as fundamental. If the Fourteenth
Amendment has absorbed them, the process of absorption has had its source in the belief that
neither liberty nor justice would exist if they were sacrificed. If a right prescribed in the Bill of
Rights is determined to be fundamental to the scheme of ordered liberty, or whether the right is
"deeply rooted in this Nation's history and tradition," then that right is applicable to the states under
the Fourteenth Amendment. Further, if the right is to be absorbed by the 14th Amendment, then
the process of incorporation has validated the belief that neither liberty nor justice would exist if
that right was sacrificed. Examples of Rights applicable, right to a jury trial, the right against self-
incrimination, right to counsel, right to bear arms . . .

A. Pre-Civil War

Barron v. City of Baltimore, 32 U.S. 243 (1833), where the city of Baltimore diverted water flow
from their natural course and essentially drained the plaintiff's harbor business. Plaintiff's brought
suit alleging the water was so shallow that it ceased to be useful for vessels, thus rendering the
harbor useless. The issue is whether the Fifth Amendment's Takings Clause is applicable to the
state legislature. Under the Fifth Amendment, private property shall not be taken for public use,
without just compensation, is intended solely as a limitation on the exercise of power by the
government, and is not applicable to the legislation of the states. Therefore, because the Fifth
Amendment is inapplicable, SCOTUS does not have jurisdiction in the matter; case dismissed.

B. Post-Civil War: Incorporation Through the Due Process Clause

Palko v. State of Connecticut, 302 U.S. 319 (1937), where the appellant was tried before a jury
and convicted of second-degree murder, however, the Supreme Court of Errors reversed the
judgement and ordered a new trial. At the new trial the appellant was tried and convicted of first-
degree murder and sentenced to the death penalty. The appellant brought the constitutional
challenge arguing he was tried twice for the same crime, violating his rights under double jeopardy
in the Fifth Amendment. The issue is whether the double jeopardy provision stated in the Fifth
Amendment is applicable to the states under the 14th amendment. Held no; a state law allowing
the prosecution to appeal the results of a criminal conviction by jury trial does not violate the Due
Process Clause of the Fourteenth Amendment. Writing for the court, Justice Cardozo explained
laws that shall be incorporated "are at the very essence of a scheme of ordered liberty. Such that
to abolish them would violate a "principle of justice so rooted in the traditions and conscience of
our people as to be ranked as fundamental." Thus, because something is in the 5th Amendment
does not guarantee application to the states.

Adamson v. California, 322 U.S. 46 (1947), where Adamson claimed that his murder conviction
violated the 14th Amendment because the prosecution had been permitted to comment on his
failure to take the stand at his trial. Justice Reed, writing for the court in a 5-4 majority, upheld
Palko. Although conceding a violation of what would have been a 5th Amendment challenge of
self-incrimination, and that the 14th guaranteed a right to a fair trial, under Palko, not all bill of
rights guarantees were protected by the 14th.

NOTE: 20 Years later the methodology shifted from whether the challenged state action violated
the "fundamental fairness" requirement implicit in due process, the court's later approach
ascertained the relevant Bill of Rights provision and asked whether the provision is essential to
"fundamental fairness," such that it should be made applicable to the states.

Duncan v. Louisiana, 391 U.S. 145 (1968), where Duncan was denied a jury trial because the
Louisiana Constitution grants jury trials only in cases in which capital punishment or imprisonment
at har labor might be imposed. Justice White writing for the court laid the framework of looking
to the Bill of Rights for guidance, and considered many of the rights guaranteed by the first eight
amendments to the constitution have been protected against by the DPC. Those rights have
expanded since the court began analyzing these claims. The question is whether the challenged
right is among those "fundamental principles of liberty and justice which lie at the base of all our
civil and political institutions." Because we believe that trial by jury in criminal cases is
fundamental to the American scheme of justice, we hold the 14th guarantees a right of jury trial in
all criminal cases.

District of Columbia v. Heller, 554 U.S. 570 (2008), where the District passed laws banning the
possession of handguns in the home, the court did not consider whether the Second Amendment
applied to the states because D.C. is not a state. However, Scalia, writing for the court analyzed
the historical interpretation of the Second Amendment, and held the District's ban on handgun
possession in the home violates the Second Amendment.

McDonald v. City of Chicago, 561 U.S. 742 (2010), reviewing the same issue as Heller, the City
of Chicago had similar laws as the District, however Chicago is in the State of Illinois, therefore
they argued the Second Amendment is not applicable to the States. Justice Alito, writing for the
court, answered whether the Second Amendment right to keep and bear arms was incorporated in
the concept of due process and applicable to the states. Held, yes, under Heller the right to bear
arms is fundamental to the scheme of the Nation's history and tradition. Under stare decisis, if a
Bill of Rights that protects a right that is fundamental from an American perspective applies
equally to the Federal Government and the States. Therefore, holding that the Due Process Clause
of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.

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 II. STATE ACTION AND THE 14TH AMENDMENT

RULE: The Constitution generally protects against wrongful conduct by the government, not
private parties. Thus, state action is necessary to trigger constitutional protection. State action can
be found in one of two ways. The challenged action meets the public function requirement,
meaning the private entity is entrusted by the State to perform functions traditionally viewed as
governmental. Or the private party's conduct fosters an entanglement constituting significant state
involvement. Meaning the State is so heavily involved in the private party's activities it fosters an
intertwinement, typically accomplished by the State commanding the private party's actions, the
State encouraging the private actor's activities, or the State and the private actor have a symbiotic
relationship.

A. The Requirement of State Action

Civil Rights Cases, 109 U.S. 3 (1883), a roll back of the sweeping protections against
discrimination enacted in the Civil Rights Act by Congress, now limited by the judiciary. Justice
Bradley writing for the court states civil rights guaranteed by the Constitution against State
aggression, cannot be impaired by the wrongful acts of individuals, unsupported in the shape of
laws, customs, or judicial or executive proceedings. The wrongful act of an individual,
unsupported by any such authority, is simply a private wrong, or a crime of that individual. Thus,
if any [black] person's rights are violated under state law, his redress is to be sought under the laws
of the state. The takeaway is Congress has no authority to regulate private parties discriminatory
practices.

B. Public Function

The Scope and Limits of State Action After Civil Rights Cases
RULE: If a law/act/policy is considered State Action, then the 14th Amendment is applicable,
even if the policy is carried out by private actors, if the policy is predominantly one affecting the
public it comes under State Action.

Marsh v. Alabama, 326 U.S. 501 (1946), the Court held that a "company town" may not limit
speech through restrictions that would violate the First Amendment if imposed by a municipality.
A Jehovah Witness was convicted under the state criminal trespass law because she distributed
religious literature without permission. Justice Black, writing for the court held a state may not
impose criminal punishment on a person who undertakes distribution of religious literature on the
premises of a company-owned town contrary to the wishes of the town's management. The
corporation, although private, has facilities built and operated primarily to benefit the public and
since their operation is essentially a public function, it is subject to state regulation.

Evans v. Newton, 382 U.S. 296 (1966), applying the Marsh public function test, held invalid under
the Equal Protection Clause the operation of a park in Macon, Georgia, for "whites only" under a
trust established in former Senator's will, even after the city trustee was replaced by private
trustees. Justice Douglass writing for the court, stated mass recreation through the use of parks is
plainly in the public domain; and state courts that aid private parties to perform that public function

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on a segregated basis implicate the state in conduct proscribed by the 14th Amendment. The
predominant character and purpose of this is municipal.

Smith v. Allwright, 321 U.S. 649 (1944), holding a white primary established by the state
convention violated the 15th Amendment. Under a prior decision, U.S. v. Classic, Art. 1 § 4
authorized congressional control of primaries where the primary is by law made part of the election
machinery. Justice Reed applied this decision to Smith because the statutory system for the
selection of party nominees for inclusion on general election ballot makes the party which is
required to follow these directions an agent of the State.

Terry v. Adams, 345 U.S. 461 (1953), finding the 15th Amendment violated by the exclusion of
African-American voters from the "pre-primary" elections of the Jaybird Democratic Association,
a "voluntary club" of white Democrats. Candidates who won Jaybird elections ran unopposed in
the Democratic primaries. The court could not agree on a majority opinion but the takeaway is the
Jaybirds operated as an auxiliary of the local party and therefore were subject to the principles of
Smith v. Allwright.

C. Effect/Significant State Involvement

Shelly v. Kraemer, 334 U.S. 1 (1948), where African-Americans attempted to purchase property
subject to racially restrictive covenants. Chief Justice Vinson writing for the court posed the issue
as whether the equal protection clause inhibits judicial enforcement by state courts of restrictive
real estate covenants based on race or color is a question which this Court has not heretofore been
called upon to consider. Relying on the rule that action of state courts and judicial officers in their
official capacities is to be regarded as action of the State within the meaning of the 14th
Amendment. Further, state action refers to exertions of state power in all forms and when the effect
of that action is to deny rights subject to the protections of the 14th , it is the obligation of this
court to enforce the constitutional commands. Thus, holding in granting judicial enforcement to
racially restrictive agreements in these cases, the States have denied the equal protection of the
laws and that, therefore, the action of the state courts cannot stand.

Evans v. Abney, 396 U.S. 435 (1970), where Senator Bacon's will conveyed property in trust in
Macon, GA, for use as a park "for white people only." The state court held Senator Bacon's
intention to provide a park for whites only had become impossible to fulfill and that accordingly
the trust had failed, thus the property reverted to the heirs of the Senator. Justice Black writing for
the court, this ruling did not constitute discrimination under the 14th.

Pennsylvania v. Board of Directors of Trusts, 352 U.S. 230 (1957), finding state action in the
denial of admission of nonwhite students to Girard College. Founded by a will left by Stephen
Girard in 1831, the City of Philadelphia was named as trustee and the board was composed of city
officials. This case opened up the door for the entanglement test.

Burton v. Wilmington Parking, 365 U.S. 715 (1961), finding State Action because there was
sufficient state involvement in an openly discriminatory operation, reversing a decision upholding
the exclusion of an African-American customer from a private restaurant located in a public
parking building under a provision of state law.

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Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972), no State Action, where a private club's racial
discrimination was challenged because the club held a state liquor license. The court held mere
licensing or regulation of a private party does not constitute state action; the state must act
affirmatively to facilitate, encourage, or authorize the activity.

Reitman v. Mulkey, 387 U.S. 369, finding State Action, challenging California's Proposition 14
which amended the state constitution to prohibit the state from denying "the right of any person to
decline to sell, lease or rent real property to such persons as he, in his discretion, chooses. Justice
White writing for the court stated mere repeal of an antidiscrimination law does not establish state
action. However, here, the court assessed the ultimate impact of Prop 14 and concluded it would
encourage and significantly involve the State in private racial discrimination.

Jackson v. Metropolitan (No State Action) – electric company regulation

Flagg Bros v. Brooks, 436 U.S. 149 (1978), finding No State Action, where a warehouseman's sale
of bailed goods to satisfy a warehouseman's lien under the UCC. Merely providing a product or
service that the government COULD offer is not sufficient to make the provider a state actor.

Blum v. Yaretsky (No State Action) – nursing home and medical benefits
Rendell-Baker v. Kohn (No State Action) – private school receiving public funding
Deshaney v. Winnebago (No State Action) – state assisting assaulted son

Lugar v. Edmonson Oil Co., 457 U.S. 922 (1982), finding State Action was present when a clerk
and sheriff acted together with a private citizen to obtain attachment against a property of the
debtor. Rule: State action exists if the actions of a private party and the government are so
intertwined that a mutual benefit results, such as if the parties are involved in a joint venture.

Edmonson v. Leesville Concrete, 500 U.S. 614 (1992), finding State Action. The use of peremptory
challenges, even by private litigants, constitutes state action because the selection of jurors is a
traditional state function and because the judge (state actor) play a significant role in the process.

Brentwood Academy v. Tenn. Secondary Sch. Ath. Ass'n, 531 U.S. 288 (2001), finding State
Action, where the athletic association was a federal actor because the association was pervasively
entwined with government policies and was managed and controlled by government officials into
their government capacity. RULE: Therefore, state action may exist if there are sufficient mutual
contacts between the conduct of a private party and the government to find that the government
is so pervasively entwined with the private entity that constitutional standards should apply to the
private actor.

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 III. EQUAL PROTECTION

RULE(S): The 14th Amendment provides in pertinent part No State shall make or enforce any
laws which deny to any person within its jurisdiction the equal protection of the laws. The
Fourteenth Amendment provides that no State shall “deny to any person within its jurisdiction the
equal protection of the laws.” The historic purpose of the 14th was to eliminate racial discrimination
emanating from official sources in the States and place a limit on the state government. This strong
policy renders racial classifications constitutionally suspect and subject to the most rigid scrutiny,
and in most circumstances irrelevant to any constitutionally acceptable legislative purpose. The
Equal Protection is also implied under the 5th Amendment of the U.S. Constitution and place a
limit on the federal government.

Standards of Review – The court in recent decades has employed three tiers of review: (1) strict
scrutiny of race discrimination and its analogues (which according to the court are inherently
suspect), (2) intermediate scrutiny of sex discrimination, and (3) minimal scrutiny requiring a
rational relationship review of other classifications (e.g., socioeconomic laws, age, and disability).

(1) Strict Scrutiny – Race/Ethnicity is inherently a “Suspect Class” requiring strict scrutiny.
To survive strict scrutiny review, the government must establish a compelling interest.
Even if the government can show a “compelling interest,” the court will not uphold the
classification unless it independently reaches the conclusion that the classification is
“necessary” and has been “narrowly tailored” to promote that compelling state interest.
(2) Intermediate Scrutiny – Discrimination on the basis on sex and gender requires
intermediate scrutiny. For a statute that discriminates on the basis of gender to be upheld
the proponent must demonstrate an “exceedingly persuasive justification” for the
discrimination. This burden is met only by showing the discriminating classification serves
important governmental objectives, and that the discriminatory means employed is
“substantially related” to the achievement of those objectives. Lastly, in determining
constitutionality, the reviewing court must be sure to ascertain whether the statutory
objective itself reflects archaic and stereotypic notions relating to gender.
(3) Minimal Scrutiny – Requires a “rational relationship” between the governmental interests
and the challenged statute.

EXAM ANALYSIS STEPS:

(1) State Action?
(2) Framers Intent/Purpose of the 14th Amendment
(3) What is the stated purpose of the challenged statute? There must be discriminatory intent
on behalf of the government to trigger strict scrutiny.
(4) Is it facially discriminatory?

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 (5) Is it facially neutral, but discriminatory in effect?
(6) Classification
(7) Level of Scrutiny

A. Separate but Equal - Race

Plessy v. Ferguson, 163 U.S. 537 (1896), where the Court sustained an 1890 Louisiana Law that
required “equal but separate accommodations” for “white” and “colored” railroad passengers.
Plessy was alleged to be seven-eights white and one-eight black, the mixture was not discernable
to him and he believed he was entitled to every right of the white race. Justice Brown writing for
the court, stated laws requiring their separation in places where they are liable to be brought into
contact do not necessarily imply the inferiority of either race to the other, and have been generally,
recognized as within the competency of the state legislatures in the exercise of their police power.
We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the
enforced separation of the two races stamps the colored race with a badge of inferiority. If this be
so, it is not by reason if anything found in the act, but solely because the colored race chooses to
put that construction on it.

Brown v. Bd. of Education (I), 347 U.S. 483 (1954), in a consolidation of cases from Kansas, South
Carolina, Virginia, and Delaware, each case consisted of minors of the negro race seeking to obtain
admission to the public schools of their community, and each instance their admission was denied
due to segregation under the laws. Chief justice Warren writing for the court, analyzed the effect
of segregation itself on public education, deviating from the original approach of comparing
tangible factors to find equality. Posing the question: Does segregation of children in public
schools solely on the basis of race, even though the physical facilities, and other “tangible” factors
may be equal, deprive the children of the minority group of equal educational opportunities? Held,
it does “segregation of white and colored children in public schools has a detrimental effect upon
the colored children. The impact is greater when it has sanction of the law, for the policy of
separating the races is usually interpreted as denoting the inferiority of the negro group.”
Concluding in the field of public education the doctrine of “separate but equal” has no place.

Brown v. Bd. of Education (II), 347 U.S. 294 (1967), focusing on the remedies and implementing
the Brown (I) holding.

Bolling v. Sharpe, 347 U.S. 497 (1954), the court held that racial segregation in the D.C. public
schools violated the Due Process Clause of the 5th Amendment. Chief Justice Warren writing for
the court stated “The 5th Amendment does not contain an equal protection clause. But the concepts

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of equal protection and due process, both stem from our American ideal of fairness, are not
mutually exclusive.” As the court has recognized, discrimination may be so unjustifiable as to be
violative of due process. Classifications based solely on race must be scrutinized with particular
case, since they are contrary to our traditions and hence constitutionally suspect. Segregation in
public education is not reasonably related to any proper governmental objective and thus it imposes
on Negro children of D.C. a burden that constitutes arbitrary deprivation of their liberty violating
their due process.

B. Facial Discrimination - Interracial Marriage

Loving v. Virginia, 388 U.S. 1 (1967), Black woman and White man, married in D.C., and returned
to VA where they were convicted of violating VA’s criminal ban on miscegenation. Chief Justice
Warren writing for the court, posed the question: Whether a statutory scheme adopted by VA to
prevent marriages between persons solely on the basis of racial classification violates the 14th
Amendment. Held, these statutes cannot stand. Rejecting the notion that mere “equal application”
of a statute containing racial classifications is enough to remove the classifications of the 14 th
proscription of all invidious racial discriminations, we do not accept the State’s contention that
these statutes should be upheld if there is any possible basis for concluding that they serve a
rational purpose. Equal protection demands that racial classifications, especially suspect in
criminal statutes, be subjected to the “most rigid scrutiny,” and if, there are ever to be upheld, they
must be shown to be necessary to the accomplishment of some permissible state objective,
independent of the racial discrimination which it was the objective of the 14th to eliminate.

C. Facial Discrimination Against Racial Minorities

Korematsu v. United States, 323 U.S. 214 (1944), one of the only cases where a strict scrutiny
review survived and upheld a statute. Case arose from the Japanese internment camps during
WWII, after Pearl Harbor, FDR issued an Executive Order protecting against espionage and
sabotage. Allowing Military leaders full discretion of who may leave or who shall be subject to
restrictions, the order required persons of Japanese ancestries to report to relocation centers from
which they were deported to internment camps. Justice Black writing for the court stated all legal
restrictions which curtail the civil rights of a single racial group are immediately suspect. That is
not to say that all restrictions are unconstitutional. Pressing public necessity may sometimes justify
the existence of such restrictions; racial antagonism never can. But here, the requisite public
necessity was found.

D. Facially Neutral Laws with Discriminatory Effect

Washington v. Davis, 426 U.S. 299 (1976), arising from an equal protection challenge by African
American applicants to the D.C. Metropolitan Police Department who were rejected for failing to
perform satisfactorily on a written test . Justice White writing for the court clarified discriminatory
racial purpose need not be express or appear on the face of the statute, or that a law’s
disproportionate impact is irrelevant in cases involving Constitution-based claims of racial
discrimination. A statute, otherwise neutral on its face, must not be applied so as invidiously to
discriminate on the basis of race. After making a prima facie case of discriminatory purpose or
effect, the burden of proof shifts to the State to rebut the presumption of unconstitutional action
by showing that permissible racially neutral selection criteria and procedures have produced the
monochromatic result. Necessarily, an invidious discriminatory purpose may often be inferred
from the totality of the relevant facts, including the fact, that the law bears more heavily on one

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race that another. Disproportionate impact, standing alone, does not trigger the rule that racial
classifications are subjected to the strictest scrutiny and are justifiable only by the weightiest of
considerations. Finding no facial discrimination, nor disproportionate impact, the court held
invalidating the statute would be far reaching and a matter for the legislature.

E. Affirmative Action (p. 692)

Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978), (higher education) where UC Davis
Medical School reserved 16 out of 100 places in the entering class for members of minority groups.
Allan Bakke, a white applicant, who was rejected even though applicants were admitted under the
special program with scores lower than his brought suit under the 14th Amendment and won at
state court. Justice Powell, writing for the court, held where a public university that receives federal
funds they may not exhibit a preference for racial minorities in its admissions policy. The state
does, however, have a legitimate and substantial interest in eliminating the disabling effects of
identified discrimination. But doing so through a special admissions program involving the use of
an explicit racial discrimination fails in that regard. The instution of higher learning which must
be public to open its safe up to litigation is making a legal argument that Affirmative Action sis
necessary to achieve a compelling interest in having a diverse study body which reflects a wider
reflection of humanity.

Wygant v. Jackson Bd. of Educ, 476 U.S. 267 (1986), (public employment) where a public school
board entered into a collective-bargaining agreement with a teacher’s union. The agreement
provided that, when layoffs where required, teachers with the most seniority would be retained,
except that at no time will there be a greater percentage of minority personnel laid off than the
current percentage of minority personnel employed at the time of layoff. Justice Powell, writing
in plurality opinion, held under the Equal Protection Clause a school district may not take race-
based remedial actions w/o a strong basis in evidence that such actions are necessary to correct
past discriminatory hiring practices.

Fulilove v. Klutznick, 448 U.S. 448 (1980), (public contracting) where the court rejected a facial
constitutional challenge to a requirement in a congressional spending program that, absent a
waiver, 10% of federal funds granted for local public works projects must be used by the state or
local grantee to procure services from businesses controlled by members of specified minority
groups. No Majority Opinion, but the Court upheld the statute.

Gratz v. Bollonger, 539 U.S. 244 (2003) UM Office of Admissions considers race and admits
virtually every qualified applicant from certain groups determined to be “underrepresented
minorities. Chief Justice William H. Rehnquist, writing for the court, held that the University of
Michigan’s use of racial preference in undergraduate admission violates both the Equal Protection.
Clause. The issue before the court was whether the University of Michigan use of racial preference
in undergraduate admission violate the Equal Protection Clause of the 14th amendment.

Grutter v. Bollinger, 539 U.S. 306 (2003), (higher education 25 years post Bakke), where
University of Michigan Law School in effort to achieve diversity, added substantial weight to
racial and ethnic diversity factors when reviewing applications in addition to other diversity
variables. Barbar Grutter, a while woman and Michigan resident with a 3.8 GPA and 161 LSAT
brought suit under the Equal Protection Clause. Justice O’Conner, writing for the court, affirmed

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Bakke held diversity is a compelling interest, therefore a school may use race as a factor in student
admissions without violating the Equal Protection Clause. However, the school must demonstrate
it previously made a serious, good faith consideration of workable, race-neutral alternatives to
achieve the sought-after racial diversity.

Fisher v. University of Texas at Austin, 136 [Link]. 2198 (2016), (Higher Ed), where the state
legislature passed a statute known as the Top Ten Percent plan guaranteeing automatic access to
all students from Texas High Schools AND UT deployed a sui generis approach weighing race as
a factor for those not admitted in the top ten percent plan. Fisher brought suit under the Equal
Protection Clause. The U.S. Court of Appeals for the Fifth held the admissions policy
constitutional, but SCOTUS reversed because the court deployed the wrong standard. On Cert,
Justice Kennedy, writing for the court, held a public university’s decision to consider race in
admissions should be reviewed under strict scrutiny.

F. Gender/Sex (quasi-suspect classification) Discrimination (Intermediate Scrutiny) (p.

755)
Craig v. Boren, 429 U.S. 190 (1976), where an Oklahoma statute prohibited the sale of 3.2 percent
alcoholic beer to males under the age of twenty-one, but permitted the sale to females over the age
of eighteen. Justice Brennan, writing for the court, a governmental regulation involving gender
discrimination is constitutional if it is substantially related to the achievement of an important
governmental purpose. Statute held unconstitutional.

Mississippi University for Women v. Hogan, 458 U.S. 718 (1982), where the university upheld a
policy excluding men from admission. A male nurse (Hogan) applied for admission to MUW and
was denied. Justice O’Conner, writing for the court, held a state statute cannot exclude males from
enrolling in a state-sponsored professional nursing school without violating the Equal Protection
Clause. For a statute that discriminates on the basis of gender to be upheld the proponent must
demonstrate an “exceedingly persuasive justification” for the discrimination. This burden is met
only by showing the discriminating classification serves important governmental objectives, and
that the discriminatory means employed is substantially related to the achievement of those
objectives. Lastly, in determining constitutionality, the reviewing court must be sure to ascertain
whether the statutory objective itself reflects archaic and stereotypic notions relating to gender.

J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994), where the state of Alabama in a paternity suit,
during voir dire, used nine of its ten peremptory strikes to exclude male jurors creating an entirely
female jury. Justice Blackmun, writing for the court, held the equal protection clause prohibits
peremptory challenges based on gender. The state relied on stereotypes based on gender to gain a
sympathetic jury.

United States v. Virginia, 518 U.S. 515 (1996), where Virginia Military Institute (VMI) refused to
admit women, after judgment, VMI created a school for women called VWIL differing in academic
offerings and resources. Justice Ginsberg, writing for the court (one of her very first opinions),
held all governmental gender classifications must be substantially related to an important
governmental purpose that can be demonstrated by the government if it offers an exceedingly
persuasive justification for the classification. Here, VMI failed to do so, the policy of excluding
women is unconstitutional.

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Geduldig v. Aiello, 417 U.S. 484 (1974), the court held the exclusion of “disability that
accompanies normal pregnancy and childbirth” from California’s disability insurance system did
not constitute an invidious discrimination under the Equal Protection Clause. Justice Stewart wrote
discrimination based on pregnancy in a state disability insurance program is subject to rational
basis (minimum scrutiny) review. Statute constitutional.

Michael M. v. Superior Court, 450 U.S. 464 (1981), (Gender Specific Rape Laws) the court upheld
California’s “statutory rape” law, which punished the male, but not the female participant in sexual
intercourse when the female was under 18 and not the males wife.

Rostker v. Goldberg, 453 U.S. 57 (1981), (Exclusion of Women from the military draft) the court
by a 6-3 vote rejected a claim under the equal protection aspect of the Fifth Amendment due
process, that the Military Selective Service Act (MSSA) was unconstitutional in “authorizing” the
President to require the registration of males and not females.” Emphasizing the purpose of draft
registration was to “facilitate any eventual conscription.” Justice Rehnquist, writing for the
majority, the case arises in the context of Congress’ authority over national defense and military
affairs. Congress’ intent was to facilitate combat, there is no reason to require women to register
for a draft that is designed to address an emergency combat situation if women themselves cannot
participate in combat. MSSA held constitutional.

Nguyen v. INS, 233 U.S. 52 (2001), (discrimination against unmarried fathers) the Court upheld a
law that treated children born outside of wedlock to one parent who was a citizen and one parent
who was a noncitizen differently depending on whether the mother or father who was the citizen.
Justice Kennedy, writing for the court, Held, a federal law establishing different requirements for
derivative citizenship of an illegitimate child born abroad based on the citizen parent’s gender does
not violate equal protection.

G. Other Classifications (Sexual Orientation, Alienage, Disability, Age, Poverty)

Graham v. Richardson, 403 U.S. 365 (1971) (Alienage – Welfare Benefits), the court held that
states could not deny welfare benefits to noncitizens, states would bear the heavy burden pasting
muster under Strict Scrutiny. Alienage is defined as a person who has no united states citizenship,
but a person who has legal residency in the United States.

Foley v. Connelie, 435 U.S. 291 (1978) (Governmental Function Exception – Police Officers),
Chief Justice Burger, writing for the majority, held New York could bar employment of aliens as
state troopers. States need only show rational relationship between the interests sought to be
protected and the limiting qualification. Police officers in the ranks do not formulate policy, per
se, but they are clothed with authority to exercise an almost infinite variety of discretionary powers.
Qualifying them for the Dougall exception. Further, the court noted that states need only to show
some rational relationship between a valid state interest and a classification involving aliens, the
Court held that the police function was one of the basic functions of the government.

Matthews v. Diaz, 426 U.S. 67 (1976) (Governmental Function Exception – Medical Benefits), the
Court held that Congress may condition an alien’s eligibility for participation in a federal Medicare
program on (a) admission for permanent residence and (b) continuous residence in the United
States for five years. Justice Stevens applied a differential standard of review stating Congress has

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broad power over naturalization and immigration, precluding judicial review because of political
question.

Cleburn v. Cleburne Living Center, 473 U.S. 432 (1985) (Disabilities), the court held 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.

H. The “Fundamental Interests” Branch of Equal Protection

Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966), establishing voting in state
elections is fundamental for equal protection purposes even in the absence of any textual right.

Kramer v. Union School District No. 15, 395 U.S. 621 (1969), a state statue denying the right to
vote in school-district elections to some district residents who are otherwise qualified to vote by
age and citizenship violates the Equal Protection Clause of the 14 th unless the exclusion of these
residents is necessary to further compelling state interests.

Reynolds v. Sims, 377 U.S. 533 (1964), (Reapportionment), residents in Jefferson County,
Alabama brought suit challenging the malapportionment of the Alabama legislature. Held, the
Equal Protection Clause requires the seats in a bicameral state legislature to be apportioned on a
population basis that equally weighs one vote for every one person residing in a legislative district.

Evenwel v. Abbott, 136 [Link]. 1120 (2016), a state drawing its legislative districts based on total
population does not violate the Equal Protection Clause.

IV. SUBSTANTIVE DUE PROCESS AND THE 14TH AMENDMENT

RULE(S): The Fourteenth Amendment provides “. . .nor shall any State deprive any person of life,
liberty, or property without due process of law.”

Standards of Review – The court in recent decades has employed three tiers of review: (1) strict
scrutiny of race discrimination and its analogues (which according to the court are inherently
suspect), (2) intermediate scrutiny of sex discrimination, and (3) minimal scrutiny requiring a
rational relationship review of other classifications (e.g., socioeconomic laws, age, and disability).

(4) Strict Scrutiny – Race is inherently a “Suspect Class” requiring strict scrutiny. To survive
strict scrutiny review, the government must establish a compelling interest. Even if the
government can show a “compelling interest,” the court will not uphold the classification
unless it independently reaches the conclusion that the classification is “necessary” and has
been “narrowly tailored” to promote that compelling state interest.
(5) Intermediate Scrutiny – Discrimination on the basis on sex and gender requires
intermediate scrutiny. For a statute that discriminates on the basis of gender to be upheld
the proponent must demonstrate an “exceedingly persuasive justification” for the
discrimination. This burden is met only by showing the discriminating classification serves
important governmental objectives, and that the discriminatory means employed is
“substantially related” to the achievement of those objectives. Lastly, in determining

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 constitutionality, the reviewing court must be sure to ascertain whether the statutory
objective itself reflects archaic and stereotypic notions relating to gender.
(6) Minimal Scrutiny – Requires a “rational relationship” between the governmental interests
and the challenged statute.

EXAM ANALYSIS STEPS:

(1) State Action?
(2) Framers Intent/Purpose of the 14th Amendment
(3) What is the stated purpose of the challenged statute? There must be discriminatory intent
on behalf of the government to trigger strict scrutiny.
(4) Is it facially discriminatory?

(5) Is it facially neutral, but discriminatory in effect?

(6) Classification
(7) Level of Scrutiny

A. Substantive Due Process, Childbearing, and Contraception (Privacy) –Implied Right

a. Contraceptives
Griswold v. Connecticut, 381 U.S. 479 (1965), Challenging two Connecticut provisions preventing
contraception and the assistance in providing the contraceptive, the appellants brought suit under
the 14th Amendment. Justice Douglas, writing for the court, held the Bill of Rights has an implied
Guarantee of Privacy in their penumbras creating zones of privacy. There is no right to privacy
enumerated in the Constitution. The Court has offered different doctrinal bases for the existence
of such a right (see, Griswold v. Connecticut, § 496), but today it is accepted that the right to
privacy is an aspect of liberty protected by the due process clauses. The Court has recognized the
right of privacy as encompassing the right of married couples to receive information about
contraceptives. Griswold v. Connecticut, 381 U.S. 479 (1965). The Court invalidated a state law
which made it a crime to give advice or information about contraceptives to married couples. The
Court said that the law violated a fundamental right to marital privacy. Justice Douglas said the
right to marital privacy came from penumbras, formed by emanations from the First, Third, Fourth,
Fifth, and Ninth Amendments (enumerated rights have certain corollary rights which flow from
them). Justice Douglas did not place the right to marital privacy in the liberty provision of the due
process clause, but that is where the Court places it today.

Eisenstadt v. Baird, 405 U.S. 438 (1972). - The Court has held that unmarried persons, as well as
married couples, have a constitutional right to access to contraceptives. The Court invalidated,

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under equal protection, a Massachusetts law criminalizing the distribution of contraceptives to
unmarried persons. This law violated the rights of single persons, under the Equal Protection
Clause, to be treated the same as married persons in terms of access to contraceptives. In effect,
the Court recognized a fundamental right of unmarried adults to have access to contraceptives.

Roe v. Wade, 410 U.S. 113 (1973). - The Court has held that a woman has a fundamental right to
decide whether or not to terminate her pregnancy. The Court invalidated state laws criminalizing
abortion, except in a case where the woman’s life was in danger. The Court, 7–2, ruled that a
pregnant woman has a fundamental right to decide whether or not to terminate her pregnancy. The
Court recognized two state interests, each of which becomes compelling at a different point during
pregnancy. A state’s interest in maternal health or life becomes compelling at the end of the 1st
trimester, providing a basis for regulation during the second and 3rd trimester. A state’s interest in
potential human life becomes compelling at viability (24–28 weeks) and provides a basis for a
state restricting or prohibiting abortion during the third trimester. The Court also held that a fetus
is not a person entitled to protection under the Fourteenth Amendment.

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). (Argue with
Roe v. Wade) - Justice O’Connor has adopted an “undue burden” analysis in abortion cases. Post-
viability, a state may restrict or prohibit abortion. Pre-viability, a state may not pass a law which,
by purpose or effect, imposes an undue burden on a woman’s decision to terminate her pregnancy.
In Casey, the Court reviewed five provisions of a Pennsylvania law regulating abortion. The Court
upheld an informed consent requirement for adult women, a requirement that an adult woman wait
twenty-four hours after receiving certain information before she can have an abortion, a
requirement that a minor get the informed consent of one of her parents before she has an abortion
(a judicial bypass was provided if the minor does not want to or cannot get the consent of a parent),
and certain reporting requirements. The Court struck down a spousal notification requirement.
Although the Court retained the central holding of Roe, that a woman has a fundamental right to
decide whether to terminate her pregnancy, seven Justices rejected the trimester framework of Roe.
Four Justices (Rehnquist, White, Scalia, and Thomas) voted to overrule Roe completely. Two
Justices (Blackmun and Stevens) voted to retain all of Roe. Three Justices (O’Connor, Kennedy,
and Souter) voted to throw out the trimester framework, but retain the central right to decide.
Justice O’Connor, writing the operative opinion in Casey, split pregnancy into two parts: pre-
viability and post-viability. Post-viability, a state may seriously restrict, even prohibit, abortion.
Pre-viability, a state may impose relatively non-intrusive requirements, but may not place an
“undue burden” on the woman’s decision to abort. An undue burden exists when a state law has
the purpose or effect of placing a substantial obstacle in the path of a woman who wants to abort
a non-viable fetus. Criminalizing abortion would be an undue burden as would spousal consent,
or the spousal notice law struck down in Casey. Some informed consent laws, and a twenty-four
hour waiting period for an adult woman would not be undue burdens. Many of the restrictions
received by the Court in pre-Casey cases will have to be revisited to see how they fare under the
undue burden standard of Casey.

Gonzales v. Carhart - In 2003, Congress passed and the President signed the Partial-Birth Abortion
Ban Act. The Court ruled by a 5-4 vote that Congress's ban on partial-birth abortion was not
unconstitutionally vague and did not impose an undue burden on the right to an abortion. Justice
Anthony Kennedy wrote the opinion for the majority. The Court held that, under the most

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reasonable interpretation, the Act applies only to the intact D&E method (also known as "partial-
birth abortion") and not to the more common D&E procedure. The Act's application was limited
by provisions that restrict enforcement to cases where the physician intends to perform an intact
D&E and delivers the still-living fetus past specific "anatomical landmarks." Because the majority
found that the Act applies only to a specific method of abortion, it held that the ban was not
unconstitutionally vague, overbroad, or an undue burden on the decision to obtain an abortion. The
Court also held that Congress, after finding intact D&E never to be medically necessary, could
validly omit a health exception from the ban, even when "some part of the medical community"
considers the procedure necessary. To require the exception whenever "medical uncertainty" exists
would be "too exacting a standard to impose on the legislative power [...] to regulate the medical
profession." The Court left open the possibility that an as-applied challenge could be brought
against the Act if it were ever applied in a situation in which an intact D&E was necessary to
preserve a woman's health. Justice Ginsburg's dissent disputed the majority's claim that the opinion
was consistent with the Casey and Stenberg precedents and said "The Court's hostility to the
right Roe and Casey secured is not concealed.

b. Sexual Orientation
Romer v. Evans - Colorado voters adopted Amendment 2 to their State Constitution precluding
any judicial, legislative, or executive action designed to protect persons from discrimination based
on their "homosexual, lesbian, or bisexual orientation, conduct, practices or relationships."
Following a legal challenge by homosexual and other aggrieved parties, the state trial court entered
a permanent injunction enjoining Amendment 2's enforcement. The Colorado Supreme Court
affirmed on appeal. In a 6-to-3 decision, the Court held that Amendment 2 of the Colorado State
Constitution violated the equal protection clause. Amendment 2 singled out homosexual and
bisexual persons, imposing on them a broad disability by denying them the right to seek and
receive specific legal protection from discrimination. In his opinion for the Court, Justice Anthony
Kennedy noted that oftentimes a law will be sustained under the equal protection clause, even if it
seems to disadvantage a specific group, so long as it can be shown to "advance a legitimate
government interest." Amendment 2, by depriving persons of equal protection under the law due
to their sexual orientation failed to advance such a legitimate interest. Justice Kennedy concluded:
"If the constitutional conception of 'equal protection of the laws' means anything, it must at the
very least mean that a bare desire to harm a politically unpopular group cannot constitute a
legitimate governmental interest."

Lawrence v. Texas, 539 U.S. 558 (2003) - The Court held that a state statute making it a crime for
two persons of the same sex to engage in certain intimate sexual conduct is an abridgment of liberty
protected under the Due Process Clause. The Court, with five justices relying on a substantive due
process rationale, invalidated the application of a Texas anti-sodomy statute to adult males who
had engaged in a consensual sexual act in the privacy of a home. In reaching its result, the Court
overruled Bowers v. Hardwick, 478 U.S. 186 (1986), in which the Court upheld the application of
a Georgia criminal sodomy statute to consenting adults who engaged in homosexual activity. In
Bowers, the Court rejected the argument that the constitutional right of privacy was broad enough
to protect this activity, and also rejected the claim that this activity was protected because it took
place in the home. In Lawrence, the majority said that the liberty protected by the Constitution
allows homosexuals the right to choose to enter relationships in the confines of their homes and
their private lives and retain their dignity as free persons. The majority does not say that there is a

15
fundamental right to engage in homosexual activity, nor does it apply the traditional strict scrutiny
standard. Rather, it concludes that Texas has no legitimate state interest underlying its law
(rejecting the morality argument), and thus the Texas statute fails rational basis scrutiny. Justice
O’Connor agrees that the Texas statute is unconstitutional, but relies on the Equal Protection
Clause to reach her conclusion. Refusing to join in the majority’s overruling of Bowers, she instead
says that a law branding one class of persons as criminal based solely on a state’s moral
disapproved of that class violates the Equal Protection Clause

c. Same Sex Couples

United States v. Windsor, 133 [Link]. 2675 (2013) - The Court has held that the right to marry is an
aspect of liberty protected by the Due Process Clauses of the Constitution. This case took up the
constitutionality of the federal Defense of Marriage Act, which defined marriage for purposes of
federal law as the lawful union of one man and one woman. The Court, with Justice Kennedy
writing, declared the law unconstitutional. The federal government had no legitimate interest in
defining marriage this way, so as to conflict with the laws of those states that recognized same-sex
marriages. Windsor uses the language of rational basis review; the Court did not declare that same-
sex couples have a fundamental right to marry. But Justice Kennedy did say that extraordinary
forms of discrimination require a reviewing court to examine the law with “careful consideration.”
As a result of Windsor, federal law will recognize as valid marriages performed in states that
recognize same-sex marriage. STUDY TIP: Windsor formally applied rationality review to find
Section 3 of DOMA 243 unconstitutional. Justice Kennedy did the same thing in two earlier
decisions dealing with gay and lesbian rights, Romer v. Evans, 517 U.S. 620 (1996) (equal
protection), and Lawrence v. Texas, 539 U.S. 558 (2003) (due process). In all three cases, though,
an argument can be made that the Court really applied elevated scrutiny to the laws in question,
and disguised it with rational basis language. In Windsor, for example, Justice Kennedy said that
extraordinary forms of discrimination mandate “careful consideration,” which obviously goes
beyond the boundaries of rational basis review. But then he concluded that the federal government
had no legitimate interest in defining marriage as it had. Alternatively, the Romer, Lawrence, and
Windsor line of decisions might be seen as modifying the burden of persuasion in the case where
a challenger makes a showing that the law probably was motivated by discriminatory animus
toward a politically powerless minority. In that event, the Court shifts the burden to the state to
show some legitimate interest for the law, and to show that the means it has chosen are rationally
related to achieving that interest. When analyzing both ends and means, the Court will examine
both more carefully. In cases involving discrimination against gays and lesbians, look for the Court
to scrutinize the law more closely, even if, as a formal matter, the Court invokes rational basis
review.

Obergefell v. Hodges - Groups of same-sex couples sued their relevant state agencies in Ohio,
Michigan, Kentucky, and Tennessee to challenge the constitutionality of those states' bans on
same-sex marriage or refusal to recognize legal same-sex marriages that occurred in jurisdictions
that provided for such marriages. The Court held that the Due Process Clause of the Fourteenth
Amendment guarantees the right to marry as one of the fundamental liberties it protects, and that
analysis applies to same-sex couples in the same manner as it does to opposite-sex couples. Judicial
precedent has held that the right to marry is a fundamental liberty because it is inherent to the
concept of individual autonomy, it protects the most intimate association between two people, it
safeguards children and families by according legal recognition to building a home and raising

16
children, and it has historically been recognized as the keystone of social order. Because there are
no differences between a same-sex union and an opposite-sex union with respect to these
principles, the exclusion of same-sex couples from the right to marry violates the Due Process
Clause of the Fourteenth Amendment. The Equal Protection Clause of the Fourteenth Amendment
also guarantees the right of same-sex couples to marry as the denial of that right would deny same-
sex couples equal protection under the law. Marriage rights have traditionally been addressed
through both parts of the Fourteenth Amendment, and the same interrelated principles of liberty
and equality apply with equal force to these cases; therefore, the Constitution protects the
fundamental right of same-sex couples to marry. The Court also held that the First Amendment
protects the rights of religious organizations to adhere to their principles, but it does not allow
states to deny same-sex couples the right to marry on the same terms as those for opposite-sex
couples.

d. Right to Terminate One’s Life

Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990) - A majority of the Court
has recognized a low-level liberty interest in refusing medical treatment; so far, this has not been
deemed to be a fundamental right. The Court upheld a Missouri statute that required proof by clear
and convincing evidence that an incompetent person would have wanted to discontinue lifesaving
food and water from being artificially administered. Nancy Cruzan had been in a persistent
vegetative state for seven years when her parents sued to have the tubes removed. A majority of
the Court found that there was a liberty interest in refusing unwanted medical treatment, but only
four Justices deemed the interest fundamental.

Washington v. Glucksberg, 521 U.S. 702 (1997) - The Due Process Clause of the Fourteenth
Amendment does not create or protect a fundamental liberty interest in assisted suicide. The Court
unanimously upheld a State of Washington law which criminalizes assisting a person to commit
suicide. The plaintiffs (including three seriously ill patients and four doctors) asserted a Due
Process Clause liberty interest of a mentally competent, terminally ill adult to commit physician-
assisted suicide. Relying heavily on history and legal tradition (mainly Anglo–American common
law), the Court concluded that there exists no fundamental liberty interest in committing physician-
assisted suicide. As part of its substantive due process analysis, the Court required a “careful
description” of the asserted liberty interest. Rejecting broader characterizations of the asserted
liberty interest (i.e., the “right to die,” or the “liberty to shape death”) the Court concluded that the
proper tradition to consult was that concerning physician-assisted suicide. After concluding that
no such fundamental liberty interest existed, the Court found that Washington’s asserted state
interests, including preserving human life and avoiding a possible slide toward voluntary and
involuntary euthanasia, easily met the rational-basis test of being legitimate government interests.

Vacco v. Quill, 521 U.S. 793 (1997). - unwanted lifesaving medical treatment, and a patient
receiving assistance in committing suicide. The Court unanimously ruled that New York does not
violate the Equal Protection Clause by allowing competent adults to refuse unwanted lifesaving
medical treatment, but prohibiting assisted suicide. The Court said that since a prohibition on
assisted suicide does not abridge any fundamental right (See Glucksberg, prior case), or
discriminate against any suspect or quasi-suspect class, rational basis scrutiny is called for under
equal protection analysis. Disagreeing with the Second Circuit Court of Appeals, the Court saw a
clear distinction between refusing unwanted medical treatment (thus letting nature take its course),

17
and taking affirmative steps to bring about death (by allowing a doctor to prescribe life-ending
medication). The Court recognized a number of state interests that justified its ban on assisted
suicide, among them preserving life, avoiding a possible slide towards euthanasia, and maintaining
the physician’s role as healer.

V. FIRST AMENDMENT

There is a free speech clause and within this clause symbolic speech is also protected and the court
has also implied that there is a fundamental right of association, press, safeguards free exercise of
religion, erects a wall separating church and state.

98

99

Standards of Constitutional Review under 1st Amendment’s Free Speech Clause

In analyzing legal issues arising under the Free Speech Clause, pay attention to the following flow-
chart:

18
 1. Was the challenged action undertaken by a governmental entity or by a private
entity undertaking “state action” as that concept has been defined by the US Supreme
Court?

2. If the answer is no, the action fails.

3. If the answer is yes, move to the next question: is the challenged regulation or
legislation aimed at the expressive or communicative impact of the regulated speech?
Is the government silencing or picking sides in the market of ideas? – because it
doesn’t like what I’m saying?

1. If the answer is no, and the regulation or legislation is “content neutral” check to see
whether the regulation or legislation passes muster under the time, place and manner
standards (i.e. the applicable standard here will depend on whether the expression is
proffered at a public forum, limited public forum or at a non-public forum)
a. For a regulation to be “content-neutral,” the regulation must be more than just
“viewpoint”-neutral. “Content-neutral” means “without reference to the content.”
And that, in turn, means that restrictions that put whole topics off limits — or
circumscribe discussion of certain topics — are not content-neutral.,

Time/Place/Manner Topic Sentence: While the government cannot actually regulate on the basis
of content and if it was, it would bear the burden of showing that whatever measure it takes was
necessary and narrowly tailored to achieve a compelling interest. If the government regulates
neutrally, without paying attention to the substance of the speech and regulates only for the purpose
of establishing the time of the speech, the manifestation that is going to be had, where will it be
and for how long, the government can do this, but it must do this on the basis of a standard.

a. Time, place and manner regulation in the public forum (sidewalks, public parks, streets)
i. Is the regulation serving an “important governmental interest”?
ii. Is it “narrowly tailored”?
Whether the regulation is narrowly-tailored to achieving the governmental interest — when
content-neutral restrictions are subjected to mid-level review and the government loses, the
narrow-tailoring requirement is usually the reason. Remember, if the restriction burdens

19
“substantially more speech than is necessary” to achieve the objective, that will mean that the
restriction wasn’t narrowly-tailored, thus flunking mid-level review.
iii. Does it leave “alternative channels of communication”?

b. Time, place and manner regulation in the designated or limited public forum (not
historically open to speech-related activities but which the government has opened for such
activities either by practice or policy such as after school facilities used by social or recreational
groups)
i. Is the regulation serving an “important governmental interest”?
ii. Is it “narrowly tailored”?
iii. Does it leave “alternative channels of communication”?

c. Time, place and manner regulation in the non-public forum (property that is owned by
the government, but which hasn’t been traditionally available for public manifestations or public
protests) (airport terminals operated by public authority; signs on public property (can be removed
w/o offending 1st Amendment); candidate debates on public TV)
i. Is this regulation viewpoint neutral?

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 ii. Is this regulation reasonably related to a legitimate government
purpose?

6. If the answer is yes, then move to the next questions:

a. Is the regulated speech inciting imminent lawless action and is likely to

produce such action (Brandenburg)? – No Protection.

Brandenburg v. Ohio - The Court used a two-pronged test to evaluate speech acts: (1) speech can
be prohibited if it is "directed at inciting or producing imminent lawless action" and (2) it is "likely
to incite or produce such action."

b. Is the regulated speech “obscene” within the test announced in Miller? –

No Protection.

(1) Obscene – a thing is obscene if, considered as a whole, its predominant appeal is to prurient
interest of sex in a morbid way. extremely offensive under contemporary community

21
 standards of morality and decency; grossly repugnant to generally accepted notions of what
is appropriate. This is a difficult standard to apply.
(2) Prurient interest is material having a tendency to excite lustful thoughts.

Miller v. California Test

(1) Whether the average person applying contemporary community standards would find the
work, taken as a whole, appeals to the prurient interest;
(2) Whether the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and
(3) Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific
value.

a. Is the regulated speech “child pornography” within the meaning of

Ferber? No Protection, premised on the exploitation of children.

New York v. Ferber - A state may prohibit the exhibition, sale, or distribution of child pornography
even if that material does not meet the articulated test for obscenity. Examples: Simulation,
Cartoons as oppose to real children, this is not speech that gets no protection under the free speech
clause under the first amendment.

b. Is the regulated speech “defamatory” or “libelous”? No Protection.

Defamation generally: Remember that when the government regulates defamation, there are First
Amendment limitations:

Suits by public officials and public figures: Most important, under New York Times v. Sullivan,
if P is a public official or public figure, he may only win a defamation suit against D for a statement
relating to P’s official conduct if P can prove that D’s statement was made either “with knowledge
that it was false” or “with reckless disregard” of whether it was true or false. Use the phrase “actual
malice” to describe this requirement.

Distinguish from private figure: Be sure to examine whether the plaintiff is truly a public or,
rather, private figure. If P is a private figure, he merely has to prove negligence rather than “actual
malice.”

Intentional infliction of emotional distress: Remember that in an action for “intentional infliction
of emotional distress,” P must, similarly, follow New York Times v. Sullivan and prove “actual
malice,” if P is a public figure.

Can’t make lying a crime: Remember that government can’t generally make it a crime to “tell a
lie.” Government can forbid making factually-false statements within certain long-established pre-
defined categories (e.g., defamation, perjury, fraud). But outside those categories, government
can’t pass a law making it a crime to lie, even if the lie would be likely to cause harm.,

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 c. Is the regulated speech commercial speech that is “misleading or
deceptive”? Protected.

Virginia Pharmacy Board V. Virginia Citizens Consumer Council - the Court held that the First
Amendment protects willing speakers and willing listeners equally. The Court noted that in cases
of commercial speech, such as price advertising, freedom of speech protections apply just as they
would to noncommercial speech. Even speech that is sold for profit, or involves financial
solicitations, is protected. The Court concluded that although the Virginia State Board of Pharmacy
has a legitimate interest in preserving professionalism among its members, it may not do so at the
expense of public knowledge about lawful competitive pricing terms.

d. Is the regulated speech conducive to an illegal conspiracy or transaction?

Not Protected, found only recently in 2008. Example: phone call is a
communication between the capitals having to do with the murder of a 3rd party.

4. If the answer to any of the above is “yes” then we are before “unprotected speech”
under the 1st Amendment and the government will be able to completely prohibit it so
long as the government acts in a content neutral manner treating all similarly situated
speech in the same way.

5. If the regulated speech does not fall under any of the above-referenced categories, we
are in all likelihood before “protected speech” under the 1st Amendment. Thus, the
challenged regulation or legislation will only survive judicial review (a) if the government
can show that such action is “necessary” and “narrowly tailored” to achieve a “compelling
governmental interest.” It is the government the party bearing the burden of proof.

6. Symbolic Speech – Protected Speech.

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United States v. Obrien – burning draft card in the middle of the Vietnam war. He was trying to
convey a political message that he is opposing the Johnson administrations policies in Southeast
Asia. The government succeeded because burning the draft card would actually seriously hamper
congress to support armies and exercise its power under article 1, section 8.

a. Governmental regulations of symbolic speech (non-verbal expression within the meaning of

O’Brien) are subject to the same standards of review as regulations of expressive speech.
i. Regulations intended to restrict the content of symbolic speech
must be reviewed on the basis of strict scrutiny. Thus, the government must be required to show
that its actions are “necessary” and “narrowly tailored” to achieve a “compelling governmental
interest.” It is the government the party bearing the burden of proof.
ii. Content-neutral symbolic speech regulations are subject to the
same time, place and manner regulations applicable in the context of expressive speech.

VI. FREEDOM OF THE PRESS

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VII. FREEDOM OF ASSOCIATION

VIII. FREEDOM OF RELIGION

Example: No official church, the POTUS will not be the head of the church in America.
Note: People have a right to be left alone when it comes to religion.

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Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 US 520 - practiced the Afro-Caribbean-
based religion of Santeria. Santeria used animal sacrifice as a form of worship in which an animal's
carotid arteries would be cut and, except during healing and death rights, the animal would be
eaten. Shortly after the announcement of the establishment of a Santeria church in Hialeah, Florida,
the city council adopted several ordinances addressing religious sacrifice. The ordinances
prohibited possession of animals for sacrifice or slaughter, with specific exemptions for state-
licensed activities. Justice Anthony Kennedy, writing for the court, held that the ordinances were
neither neutral nor generally applicable. The ordinances had to be justified by a compelling
governmental interest and they had to be narrowly tailored to that interest. The core failure of the
ordinances were that they applied exclusively to the church. The ordinances singled out the
activities of the Santeria faith and suppressed more religious conduct than was necessary to achieve
their stated ends. Only conduct tied to religious belief was burdened. The ordinances targeted
religious behavior, therefore they failed to survive the rigors of strict scrutiny.

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