Constitutional Law II

The First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of grievances.

The Fourteenth Amendment:

Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the
United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life,
liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
...
Section 5.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

I. The Structure of the Constitutions Protection of Civil Liberties.

A. Barron v. Baltimore (1833).

--When the Constitution was ratified, the Bill of Rights did not apply to the States. Barron v. Baltimore, 32
U.S. 243 (1833). For instance, the first several words of the First Amendment are Congress shall make no
law It wasnt until the ratification of the Reconstruction Amendments that the States were expressly limited.
See U.S. Const. amend. XIV (No State shall).

--Barron v. Baltimore, 32 U.S. 243 (1833) (per Marshall, C.J.).

Facts: Barron was the owner of a profitable wharf in the Baltimore harbor. In the early 1800s, the city
of Baltimore began diverting streams while working on a city construction project. This caused
Barrons mounds of sand to compile in Barrons wharf, making it too shallow for most vessels. Barron
then sued the city, arguing that they had taken his property without providing just compensation.
Issue: Whether the city had violated the 5th Amendment by taking Barrons property without providing
just compensation.
Ruling/Rationale: No. We are of [the] opinion, that the [eminent domain] provision in the Fifth
Amendment to the constitutionis intended solely as a limitation on the exercise of power by the
government on the United States, and is not applicable to the legislation of the states.
--Why doesnt the Bill of Rights apply to the States? Marshall gives several reasons:
The text of the Amendments suggest they were only meant to apply to the Federal Government, e.g.,
Congress shall make no law respecting an establishment of religion
The States each have their own individual constitutions, ratified by the people, to guard against
government encroachments.
The common understanding of the time suggested that the Bill of Rights was not meant to apply to the
States.

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B. The Privileges or Immunities Clause.

--After the ratification of the Fourteenth Amendment, the U.S. Constitution expressly limited the States. There
were two clauses in the Fourteenth Amendment that potentially could have applied the Bill of Rights to the
States: the Privileges or Immunities Clause1 and the Due Process Clause.
--Textually, the Privileges or Immunities Clause seems to be the best vehicle to incorporate the Bill of Rights.
See, e.g., Duncan v. Louisiana, 391 U.S. 145, 166 (Black, J., dissenting). The Supreme Court, however,
expressly rejected this argument in the first case concerning the Fourteenth Amendment: The Slaughterhouse
Cases.

--The Slaughterhouse Cases, 83 U.S. 36 (1873) (per Miller, J.).

Facts: In the 1800s Louisiana, when a butcher slaughtered an animal, he would usually throw the
entrails into an adjacent river. Concerned about cholera, the city of New Orleans suggested that all
slaughterhouses be moved south of city limits, so that the butcher would not. Many butchers, however,
refused.
The Louisiana Legislature then chartered a private corporation, the Crescent Slaughterhouse
Company, and required butchers to conduct their business there. Dozens of Louisiana butchers then
sued the State, arguing that the law violated the newly-ratified 13th and 14th Amendments.
Issue: (1) Whether Louisianas law violated the 13th Amendments prohibition of involuntary
servitude.
*(2) Whether Louisianas law violated the 14th Amendments Privileges or Immunities Clause.
(3) Whether Louisianas law violated the 14th Amendments Due Process Clause.
(4) Whether Louisianas law violated the 14th Amendments Equal Protection Clause.
Ruling/Rationale: (1) No. The terms slavery and involuntary servitude have distinct meanings in
American culture.
(2) No. [T]he entire domain of the privileges and immunities of citizens of the Stateslay within the
constitutional and legislative power of the States, and without that of the Federal government.
(3) No. [U]nder no construction of [the Due Process Clause]can the restraint imposed by the State
of Louisiana uponthe butchers of New Orleans be held to be a deprivation of property within the
meaning of that provision.2
(4) No. The Equal Protection Clause is so clearly a provision for [African-Americans]that a strong
case would be necessary for its application to any other [race].
--In short, Justice Miller interpreted the 14th Amendment narrowly. 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 U.S. and another of the State. Furthermore, the second sentence, forbidding states from
making any law which shall abridge, applied only to federal rights. Thus, the Privileges and Immunities
Clause of the Constitution only protected rights guaranteed by the United States, not individual States.
Rights protected by the United Statesas opposed to rights protected by the Statesare along the
lines of access to ports and navigable waterways, the ability to run for federal office, and to be
protected while on the high seas. Crandall v. Nevada, 73 U.S. 35 (1868). They did not include what
we call civil rights.

--Unlike the rest of the 14th Amendment, the Privileges or Immunities Clause remained practically dormant for
over 100 years. Since The Slaughterhouse Cases, the Supreme Court has only used the Clause onceand that
case was overturned five years later. It wasnt until 1999 in Saenz v. Roe that the Court looked to the Privileges
or Immunities Clause as a limitation on the States.

1
Dont confuse the Privileges or Immunities Clause (14th A) with the Privileges and Immunities Clause (Art. IV).
2
Doesnt mention why this isnt a deprivation of liberty within the meaning of the Due Process Clause.
2
 In Saenz v. Roe, 526 U.S. 489 (1999) (per Stevens, J.), the Court struck down a California Statute that
limited welfare benefits to new California citizens. [I]t has always been common ground that this
Clause protectsthe right to travel.
Justice Thomas dissented in Saenz, arguing [b]ecause I believe that the demise of the
Privileges or Immunities Clause contributed in no small part to the current disarray of our
Fourteenth Amendment jurisprudence, I would be open to reevalutating it meaning in an
appropriate case.

C. The Due Process Clause and selective incorporation.

--In the wake of The Slaughterhouse Cases, the Supreme Court suggested an alternate approach: find the
protections in the Bill of Rights to be encompassed by the liberty protected by the Due Process Clause.
--In Chicago, Burlington, & Quincy RR Co. v. Chicago, 166 U.S. 226 (1897), the Supreme Court held that the
Due Process Clause prohibited the States from taking private property for public use without providing just
compensation. In ruling so, the Court, in effect, selectively incorporated the 5th Amendments eminent domain
requirements to the States.
However, it wasnt until Twining v. New Jersey, 211 U.S. 78 (1908), that the Supreme Court explicitly
discussed incorporating the Bill or Rights. The Twining Court declined to incorporate the 5th Amendments
protection against self-incriminationalthough the Court did note that it is possible that some of the personal
rights safeguarded by the [Bill of Rights]may also be safeguarded against state action.
--Early on, the Supreme Court was very hesitant to apply the Bill of Rights to the States. See, e.g., Palko v.
Connecticut, 302 U.S. 319 (1937) (refusing to apply the Double Jeopardy Clause to the States); Adamson v.
California, 332 U.S. 46 (1947) (reaffirming Twining). It was not until the Warren Court that the incorporation
doctrine took full force. For example, Duncan v. Louisiana illustrates the Warren Courts willingness to
incorporate the Bill of Rights.
--With few exceptions, the incorporated rights apply to the States in the same manner as they would apply to the
federal government (i.e., jot for jot).3 There are, however, limited exceptions to this rule. For example, the
States do not have to use 12-person juries in criminal cases, even though that is the federal standard. Williams
v. Florida, 399 U.S. 78 (1970). Those juries also do not have to be unanimous to sustain a criminal conviction.
Apodaca v. Oregon, 406 U.S. 404 (1972) (allowing a conviction to stand with a 11-1 jury verdict); Johnson v.
Louisiana, 406 U.S. 356 (1972) (allowing a conviction to stand with a 10-2 jury verdict).
--In short, although the incorporation debate raged amongst Justices and scholars during the mid-20th century,
the issue now seems settled. Except for the few provisions mentioned above, the Bill of Rights applies to the
States, and, in almost all instances, with the same force.

--Duncan v. Louisiana, 391 U.S. 145 (1968) (per White, J.).

Facts: Duncan, a black man, was driving his car when he saw his cousins being accosted by several
white men. He stopped the car and gathered his cousins. The white men later said that Duncan
slapped one of them. Duncan was charged with simple battery. He received a 60-day prison sentence
and a $150 fine at a mandatory bench-trial. He appealed his conviction, arguing that Louisianas
denial of a jury trial violated the 6th and 14th Amendments.
Issue: Whether the Due Process Clause of the 14th Amendment applies the 6th Amendments right to a
jury trial to the States.
Ruling/Rationale: Yes. [W]e hold that the Fourteenth Amendment guarantees a right of jury trial in all
criminal cases whichwere they to be tried in a federal courtwould come within the Sixth
Amendments guarantee.
The Court gives language from previous cases that serve as potential rules:

3
See Duncan v. Louisiana, 391 U.S. 145, 181 (1968) (Harlan, J., dissenting) (using the jot for jot language).
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 Whether a right is among those fundamental principles of liberty and justice which lie
at the base of all our civil and political institutions. Powell v. Alabama (1932).
Whether the right is basic in our system of jurisprudence. In re Oliver (1948).
Whether it is a fundamental right, essential to a fair trial. Gideon v. Wainwright
(1963).
Justice Black and Douglas (concurring) argued that the Privileges or Immunities Clause
incorporated the Bill of Rights as a whole to the States.

--The most recent case concerning the incorporation doctrine is McDonald v. Chicago.

--McDonald v. Chicago, 561 U.S. 742 (2010) (per Alito, J.).

Facts: In 1982, Chicago instituted a citywide handgun ban. McDonald, wanting to purchase a handgun
for home-protection, challenged the ban.
Issue: Whether the 2nd Amendments right to keep and bear armsas interpreted in District of
Coulmbia v. Heller (2008)applies to the States.
Ruling/Rationale: Yes. [W]e hold that the Second Amendmentis fully applicable to the States.
The McDonald Court gives the following test to determine whether a right should be
incorporated: whether the rightis fundamental to our scheme of ordered liberty,
orwhether this right is deeply rooted in this Nations history and tradition.

--There are several provisions of the Bill of Rights that have not been incorporated: (1) the 3rd Amendment; (2)
the 5th Amendments right to a grand jury trial; (3) the 7th Amendments right to a civil jury trial; and (4) the 8th
Amendments proscription of excessive fines.

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 II. State Action.

--As a general rule, the Constitution limits only the government, i.e., it does not regulate private citizens.4 See
The Civil Rights Cases, 109 U.S. 3, 11 (1883). There are, however, several exceptions and grey areas within
the state action doctrine. Namely, there are two exceptions to the state action doctrine: (1) the public functions
exception, where a private entity must comply with the Constitution if it is performing a task that is
traditionally done by the government, Marsh v. Alabama, 326 U.S. 501 (1946) (the company town case);
Terry v. Adams, 345 U.S. 461 (1953) (private election case); and (2) the entanglement exception, where
private conduct must comply with the Constitution if the government has authorized, encouraged, or facilitated
the unconstitutional conduct, Shelley v. Kraemer, 334 U.S. 1 (1948) (the enforcement case); Burton v.
Wilmington Parking Authority, 365 U.S. 715 (1961) (the symbiotic relationship case).
The contours of the state action doctrine are fuzzy at best. There are glaring inconsistencies within the
doctrinewith the Supreme Court even admitting that the cases deciding when private action might be
deemed that of the state have not been a model of consistency.5

--The Civil Rights Cases, 109 U.S. 3 (1883) (per Bradley, J.).
Facts: In 1875, Congress passed the first Civil Rights Act pursuant to 5 of the 14th Amendment. This
Act made it a civil offense to deny any person the full and equal enjoyment of[public] facilities
because of the color of their skin. Shortly after the passage of this Act, several African-Americans were
disallowed from entering restaurants, theatres, hotels, opera houses, etc. They sued the owners of the
establishments under the Act.
Issue: Whether 5 of the 14th Amendment gives Congress the power to regulate private conduct.
Ruling/Rationale: No. It is state action of a particular character that is prohibited. Individual invasion
of individual rights is not the subject-matter of the [14th] amendment. In other words, the 14th
Amendment only prohibits the States from denying any person of due process or equal protection. The
Amendment was not passed to correct private wrongs.

A. Public functions.

--There is no clear indicator as to when a private entity has taken on a public function. A company town,
which essentially takes on the role of the government, is subject to the dictates of the Constitution. Marsh v.
Alabama (1946). A mall, however, although opening its doors to as many people as possible, is not subject to
the Constitution. Hudgens v. NLRB (1976). The dominant rule seems to be Rehnquists traditional
government functions test. See Jackson v. Metropolitan Edison Co. (1972). If a private entity assumes a role
that from time immemorial has been devoted to the government, it will be subject to the restrictions set forth in
the Constitution. See Terry v. Adams (1953) (voting/elections); Evans v. Newton (1966) (operating a local
park); but see Jackson v. Metro Edison (holding that providing power is not a traditional government function).

1. Early cases.

i. Company town.

--Marsh v. Alabama, 326 U.S. 501 (1946) (per Black, J.).

Facts: Chickasaw, Alabama was a company-owned town owned by Gulf Shipping Corporation. While it
appeared and functioned just like any other town, Gulf Shipping Corp. owns everythingincluding
normally public areas (e.g., the streets and sidewalks). The plaintiff, a Jehovahs Witness, distributed

4
The obvious exception to this rule is the 13th Amendment, which prohibits slavery in all forms.
5
Edmondson v. Leesville Concrete Co., 500 U.S. 614, 632 (1991) (per Kennedy, J.); see also Charles L. Black, Jr., Foreword: State
Action, Equal Protection, and Californias Proposition 14, 81 Harv. L. Rev. 69, 95 (1967) (calling the state action doctrine a
conceptual disaster area).
5
 religious literature on the sidewalk adjacent to the towns post office. A notice was posted in the local
stores, which read: This is private property, and without written permission, no street, or house vendor,
agent or solicitation of any kind will be permitted. The plaintiff was warned several times that she
could not pass out her literature. Nonetheless, she continued to do so and was subsequently arrested for
trespassing. She argued the town had violated her First and Fourteenth Amendment rights.
Issue: Whether a privately owned town may restrict a persons First Amendment rights.
Ruling/Rationale: No. A townwhether public or privately ownedmust obey the dictates of the
Constitution.
Even if a corporation owns a town, the public still has an interest in the functioning of the community in
such manner that the channels of communication remain free. And this label of private does not give
the owner of the property absolute dominion over all guests. The more an owner, for his advantage,
opens up his property for use by the public in general, the morehis rights become circumscribed by
the statutory and constitutional rights of those who use it. In other words, whether property is private
is not dispositive.

ii. Elections.

--Terry v. Adams, 345 U.S. 461 (1953) (per Black, J.).

Facts: Since the late-1800s, a Texas county had delegated its democratic primary election powers to a
private organization: the Jaybirds. The winner of these Jaybird elections invariably went on to be
named the democratic nominee for their particular office. The Jaybirds, however, had one single
proviso within their organization: Negroes are excluded. The entire point of the Jaybird organization
was to attempt to circumvent the 15th Amendment.
Issue: Whether a private organization that assumes the role of conducting elections is subject to the
Constitution.
Ruling/Rationale: Yes. For a state to permit such a duplication of its election process is to permit a
flagrant abuse of those processes to defeat the purposes of the Fifteenth Amendment. It violates the
Fifteenth Amendment for a state, by such circumvention, to permit within its borders the use of any
device that produces an equivalent of the prohibited election.

iii. Parks.

--Evans v. Newton, 382 U.S. 296 (1966) (per Douglas, J.).

Facts: In 1911, a U.S. Senator devised a tract of land to the City of Macon, Georgia. The will specified
that the land was to be used as a whites-only park and to be supervised by a board consisting of only
white members. The city segregated the park for several years but eventually let all races use and
enjoy the park. The members of the board sued, arguing that the city should be removed as a trustee of
the park. The city then resigned as a trustee. Several black citizens intervened, arguing that the court
could not be a part of excluding blacks from a now-city-owned park.
Issue: Whether a private space is subject to the Constitution when it is used for public purposes.
Ruling/Rationale: Yes. Once a space has acquired a sufficiently municipal character, its obedience to
the Constitution cannot switched on and off by merely changing from public to private
ownership. What is public and what is private is not a black-and-white divide. Only by sifting
facts and weighing circumstances can we determine whether the reach of the Fourteenth Amendment
extends to a particular case. For when the government remains entwined in the management of a
private enterprise, that enterprise remains subject to the 14th Amendment.

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 2. The mall cases.

--Amalgamated Food Employees v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968) (per Marshall, J.).
Bad Law! Overturned by Hudgens v. NLRB (1976).
Facts: In 1965, Logan Valley Plaza, Inc. opened a new mall in Altoona, Pennsylvania. Shortly after the
opening of the mall, several members of the local Amalgamated Food Union protested the malls non-
union employment practices. The protestors were then removed from the premises under threat of
criminal trespass.
Issue: Whether a mall that is generally open to the public is subject to the 1st Amendment.
Ruling/Rationale: Yes. [T]he State may not delegate the power, through the use of its trespass
laws,to exclude those members of the public wishing to exercise their First Amendment rights
As was held in Marsh, [t]he more an owner, for his advantage, opens up his property for use by the
public, the morehis rights become circumscribed by theconstitutional rights of those who use
it. There is no better example of an owner opening his property up to the public than the example of a
shopping mall.

--Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) (per Powell, J.).
Facts: In the early 1960s, Lloyd Corp. opened a large mall in Portland, Oregon. In 1968, several
people began passing out handbills for the Resistance Community to protest the draft and the
Vietnam War. Eventually, mall security informed the protestors that they were trespassing and would
be arrested unless they stopped distributing their handbills in the mall.
Issue: Whether a mall that is generally open to the public is subject to the 1st Amendment.
Ruling/Rationale: No. [T]he facts in this case are significantly different [from Logan Valley]. First,
the speech by the protestors in in this case had no relation to the Lloyd Center.6 Second, there were
adequate alternative avenues for the protestors to pass out their handbills.7

--Hudgens v. NLRB, 424 U.S. 507 (1976) (per Stewart, J.).8

Facts: A group of labor union members engaged in picketing within the confines of a privately owned
shopping center. They were threatened that they would be arrested for trespassing if they didnt leave;
they then left. The union workers subsequently filed a charge against Hudgens with the NLRB for
prohibiting their protest. The NLRB alleged the workers rights were violated under the First
Amendment and the NLRA.
Issue: Whether the petitioner, in vacating the union workers from his premises, violated their First
Amendment rights.
Ruling/Rationale: No. The constitutional guarantee of free expression has no part to play in this case,
and the picketers here did not have a First Amendment right to enter the shopping center for the
purpose of advertising their strike against their employer. In other words, the Court explicitly overturns
Logan Valley, noting the legal acrobatics it took for the Lloyd Court to distinguish the two. You have
no 1st Amendment rights in private malls. (The case rests solely on the NLRA. The case is therefore
vacated and remanded so the NLRB may reconsider the case under the NLRAs statutory criteria
alone.)

6
So? How does the content of the speech relate to whether this is a public forum or whether there was state action?
7
So? This still doesnt address whether there was state action. There were certainly other places for the Jehovahs Witness to pass out
handbills in Marsh; that didnt make the company town any less of a state actor.
8
Justice Stewart wrote the majority opinion in Hudgens that overturned Logan Valley. In doing so, he relied solely on Lloyd, a case in
which he dissented.
7
 3. Traditional government functions test.

--Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974) (per Rehnquist, J.).
Facts: Edison was a privately owned power company. York, Pennsylvania issued Edison a certificate
of public convenience, giving Edison a monopoly on power to the town. As a condition of holding this
certificate, Edison was subjected to extensive regulation by the Pennsylvania Public Utility
Commission. Jackson, a resident of York, failed to pay her power bills. In response, Edison shut off
her power. Jackson argued that this violated the 14th Amendment by depriving her of liberty without
due process of law.
Issue: Whether a private company, which is heavily regulated by the State, is subject to the 14th
Amendment.
Ruling/Rationale: No. There mere fact that a business is subject to state regulation does not by itself
convert its action into that of the State for purposes of the Fourteenth Amendment. Nor does the fact
that the regulation is extensive and detaileddo so.
*[T]he inquiry must be whether there is a sufficiently close nexus between the State and the
challenged action of the regulated entity so that the action of the latter may be fairly treated as that of
the State itself. The crux of Rehnquists argument is that providing power is not a traditional state
function; therefore, Edison has not assumed the role of the State.9
Marshall, J., dissenting: Our cases have repeatedly relied on several factors to determine
whether there was state action: (1) whether there is a state-sanctioned monopoly; (2) whether
there is an extensive pattern of cooperation between the private entity and the State; and (3)
whether the private actor is providing a service uniquely public in nature.

B. Entanglement.

1. Judicial Enforcement.

--Traditionally, state actors are thought of as members of the Legislature (e.g., Congress passes a discriminatory
law) or the Executive Branch (e.g., a police officer exceeds his authority). In Shelley v. Kraemer, 334 U.S. 1
(1948), however, the Court held that judges are state actors and judicial enforcement amount to state action.
Within this framework, there are two major areas in which the Court has considered judicial enforcement as
state action: (1) the use of courts for prejudgment attachment, see Lugar v. Edmondson Oil Co., 457 U.S. 922
(1982); and (2) the use of peremptory challenges at trials, see Edmonson v. Leesville Concrete Co., 500 U.S.
614 (1991).

--Shelley v. Kraemer, 334 U.S. 1 (1948) (per Vinson, C.J.).

Facts: In 1911, a group of homeowners in St. Louis, Missouri signed a covenant agreement that was to
run with the land for 50 years. This covenant provided that no part of said propertyshall
beoccupied by any person not of the Caucasian race In 1945, the Shelleys, a Black family,
purchased a home that was subject to this restrictive covenant. Louis Kraemer, a resident of the same
community, then filed suit to enforce the covenant against the Shelleys.
Issue: Whether the judicial enforcement amounts to state action.
Ruling/Rationale: Yes. We have no doubt that there has been state action in [this] case[] in the full and
complete sense of the phrase. The Judiciary is just as much of a state actor as the Executive. In other
words, judges are government actors and judicial remedies are state action. When the trial judge
enforced this racist, private agreement, he put the governments stamp of approval onto this
agreementthe 14th Amendment does not allow for such approval.

9
The whole opinion is eerily similar to the traditional-government-function language used in National League of Cities v. Usery
(1976), which proved to be an unworkable test. Garcia v. SAMTA (1985).
8
 In Lugar v. Edmondson Oil Co. (1982), the Court held that the requirements of due process
apply to prejudgment attachment procedures whenever state officers act jointly with a private
creditor in securing the property in dispute.
In Lugar, the Court created a two-part test for determining when a judicial enforcement
amounts to state action: (1) the deprivation must be cause, at least in part, by the
exercise of some right or privilege created by the State; and (2) the party who caused the
alleged deprivation must be a state official or acting in concert with a state official.
Additionally, in Edmonson v. Leesville Concrete Co. (1991), the Court held that a defendant in
a civil trial was a state actor because he had made extensive use of state procedures with the
overt, significant assistance of state officials. And [b]y enforcing a discriminatory
peremptory challenge, the courtnot only made itself a party to the [biased act], butelected
to place its powerand prestige behind thediscrimination.10

2. Government Regulation.

--The seminal cases on governmental regulation and state action are Burton v. Wilmington Parking Authority,
365 U.S. 715 (1961), and Moose Lodge v. Irvis, 407 U.S. 163 (1972). These two cases created the symbiotic
relationship standard, i.e., if a private entity is so heavily subsidized or so heavily regulated by the government
that the private entity could not exist without the government, then that private entity may be deemed a state
actor. Later cases, however, have made this a harder and harder standard to satisfy. For example, in Rendell-
Baker v. Kohn, 457 U.S. 830 (1982), the Court held that a private school which received over 90% of its
funding from the government and was regulated by public authorities, was not a state actor. And in Blum v.
Yaretsky, 457 U.S. 991 (1982), the Court found that a utilization review committee, which was mandated and
heavily subsidized by federal law, was not a state actor.11

--Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961) (per Clark, J.).
Facts: The Wilmington Parking Authoritya government agency in the State of Delawareowned and
operated a parking building in Wilmington. The parking building was publicly owned, built using
public funds, and owned and operated by a government agency. The parking authority leased part of
building to a private businessEagle Coffee Shoppe. The owner of the shop refused to serve the
plaintiff in this case specifically because he was black. The plaintiff claims this violates his 14th
Amendment right to equal protection.
Issue: Whether private entities, in acting in close relationship to a state agency, can be considered state
actors, and therefore be subject to constitutional limitations.
Ruling/Rationale: Yes. In view of all the circumstances of this caseincluding the facts that the
restaurant was physically and financially an integral part of a public building, built and maintained with
public funds, devoted to a public parking service, and owned and operated by an agency of the State for
public purposesthe State was a joint participant in the operation of the restaurant, and its refusal to
serve appellant violated the Equal Protection Clause of the Fourteenth Amendment.
--[W]hen a State leases public property in the manner and for the purpose shown to have been the case
here, the proscriptions of the Fourteenth Amendment must be complied with by the lessee as certainly as
though they were binding covenants written into the agreement itself.

10
The Edmonson (and Lugar) Court used something close to the following logic: laws create peremptory challenges; and jury
selection is a government function accomplished through the power of the state and overseen by a judge; therefore, private actors who
use these laws have entangled themselves into the state action doctrine.
11
In dissent, Justice Brennan wrote an incredibly well written opinion. If the Fourteenth Amendment is to have its intended effect as
a restraint on the abuse of state power, he wrote, courts must be sensitive to the manner in which state power is exercised. And in
deciding whether state action is present in actions performed directly by persons other than government employees, what is required
is a realistic and delicate appraisal of the States involvement in the total context of the action taken. Both Brennan and Marshall
encouraged the courts to acknowledge the ubiquity of the State in our day-to-day lives and to employ a more sensitive and flexible
interpretation rather than the empty formalism proposed by the conservative bloc of the Court.
9
--Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972) (per Rehnquist, J.).
Facts: The Moose Lodge No. 107, a private club in Pennsylvania, had denied service to a friend of a
member solely because he was black. The Moose Lodge follows a constitution and bylaws set by the
Supreme Lodge, which limits membership to white males. The plaintiff is not contending that private
clubs should not be able to discriminate their members, but rather that the Lodge had a symbiotic
relationship with the Pennsylvania State Government; therefore their actions are barred by the 14th
Amendment Equal Protection Clause. His claim rests on the fact that the Lodge has a license to sell
liquor through the Pennsylvania Liquor Control Board. The plaintiff seeks an injunction forbidding the
Lodges liquor license until they cease their discriminatory practices.
Issue: Whether a private entity in possessing liquor license through the State constitutes a
symbiotic/financial relationship between the two.
Ruling/Rationale: No. There is nothing in this case approaching the symbiotic relationship that was
seen in Burton. In Burton, there was an explicit lessor/lessee relationship between the State and the
private entity. Furthermore, the restaurant in Burton was owned and operated in a public area, financed
by public funds, and its inherent purpose was for public parking. In this case, the Lodge explicitly states
that it is not open to the general public whatsoever.
--The only link between the Lodge and the State government is the State-issued liquor license. There is
no logical pathway to suggest: the State of Pennsylvania issued to liquor license to a club and that
club racially discriminated therefore, the State of Pennsylvania condones racial discrimination.
The Pennsylvania Liquor Control Boards only duty is to determine whether a business may or
may not sell liquor. They should not be expected to determine whether each business might, in
the future, discriminate against someone.

--Norwood v. Harrison, 413 U.S. 455 (1973) (per Burger, C.J.).

Facts: Mississippi had a textbook lending program where it gave textbooks to public and private
schools. In the wake of Brown v. Board, however, many areas were experiencing white flight
white school children being relocated to private, suburban schools. Several parents of Black students
in urban schools sued, arguing that the State was subsidizing racially segregative private schools.
Issue: Whether the State may subsidize a private school that discriminates on the basis of race.
Ruling/Rationale: No. The State has a duty to ensure it is does not provide financial assistance to
institutions that invidiously discriminate on the basis of race.
Contrast this decision with Rendell-Baker v. Kohn, 457 U.S. 830 (1982) (above).

10
 III. The Freedom of Speech.

--Chemerinsky argues that the 1st Amendment serves four primary purposes:
1) To further democratic self-governanceOpen discussion of candidates is essential for voters to make
informed selections in elections.
2) To discover truth[T]he best test of truth is the power of the thought to get itself accepted in the
competition of the market, and that truth is the only ground upon which their wishes safely can be
carried out. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
This rationale has been highly criticized. Our protection of the freedom of speech is second
to none; yet many people are misinformed.
The comeback is to acknowledge this problem, but to argue that allowing the government to
determine what can and cannot be said is much worse.
3) To advance individual autonomySpeech is more than advocating or criticizing politicians. It is the
primary means by which people self-identify.
4) To promote toleranceAllowing disfavored minorities to put their views into the marketplace of ideas
could shed light on misplaced racism, sexism, etc.

A. Content-based and content-neutral laws.

--The basic rule is that content-based laws are subject to strict scrutiny and are, therefore, presumptively
invalid. R. A. V. v. St. Paul, 505 U.S. 377 (1992); see also TBS v. FCC, 512 U.S. 622, 642 (1994). Content-
neutral laws, on the other hand, are subject only to intermediate scrutiny.12 TBS, 512 U.S. at 642. A law will
be found to be content-based if it seeks to suppress either a particular viewpoint or a subject matter. See, e.g.,
Perry v. Perry Local, 460 U.S. 37, 45 (1983).
Viewpoint-neutral means that the government cannot regulate speech based on the ideology of the message.
For example, the government could not pass a law that says, no pro-choice demonstrations will be allowed in
the park. Subject-matter-neutral means that the government cannot regulate speech based on the topic of the
speech. For example, the government could not pass a law that says, no abortion-related protests will be
allowed in the park.

--Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) (per Kennedy, J.).
Facts: In 1992, Congress passed the Cable Television Consumer Protection and Competition Act.
Sections 4 and 5 of this act require cable television systems to broadcast local television stations. In
other words, this law is why television channels show the local news, etc. TBS challenged these
portions of the Act, arguing that they violated the 1st Amendment.
Issue: Whether a law that requires a television station to broadcast certain programing violates the 1st
Amendment.
Ruling/Rationale: Unanswered. The Court remanded the case to the lower court. However, the Court
did hold that this law should be subject only to intermediate scrutiny because the law was content-
neutral.13
--[T]he First Amendment, subject only to narrow and well understood exceptions, does not
countenance governmental control over the content of messages expressed by private individuals. Our
precedents thus apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose
differential burdens upon speech because of its content. In contrast, regulations that are unrelated to
the content of speech are subject to an intermediate level of scrutiny because in most cases they pose a
less substantial risk of excising certain ideas or viewpoints from the public dialogue.

12
Time, place, and manner restrictions are considered content-neutral. These require the government to leave adequate alternate
forms of communication open.
13
The case was, again, granted cert. in 1997, where the Supreme Court held that the must-carry provisions passed intermediate
scrutiny.
11
 --Deciding whether a particular regulation is content based or content neutral is not always a simple
task. We have said that the principal inquiry in determining content neutralityis whether the
government has adopted a regulation of speech because of [agreement or] disagreement with the
message it conveys. However, the mere assertion of a content-neutral purpose [will not] be enough
to save a law which, on its face, discriminates based on content.
As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the
basis of the ideas or views expressed are content based.

--Boos v. Barry, 485 U.S. 312 (1988) (per OConnor, J.).

Facts: The District of Columbia passed a law that prohibited people from displaying signs within 500
feet of any foreign embassy if that sign would place the foreign government in public disrepute. In
the 1980s, Boos, along with several other plaintiffs, sought to display signs in front the U.S.S.R. and
Nicaraguan embassies. They sued for injunctive relief against this law.
Issue: Whether a law that prohibits certain messages in certain public places violates the First
Amendment.
Ruling/Rationale: Yes. [This law] is content-based. Whether individuals may picket in front of a
foreign embassy depends entirely upon whether their picket signs are critical of the foreign
government One category of speechspeech disfavoring a certain foreign governmenthas been
proscribed. Other categories of speechsuch as speech favoring the foreign governmentare allowed.
--However, the provision is not viewpoint-based.14 Our American law is not saying which speech is
favorable or unfavorable. That distinction depends entirely on the foreign government. With the
array of foreign governments and policies, the court cannot broadly call this law viewpoint-based.
--The provision does not pass strict scrutiny. The government argued it had a compelling interest in
protecting foreign officials from heckling ambassadors, etc. An adverse emotional impact on the
audience is insufficient. Hustler v. Fallwell, 485 U.S. 46, 55 (1988).

--Reed v. Town of Gilbert, 576 U.S. ___ (2015) (per Thomas, J.).
Facts: The town of Gilbert, Arizona classified yard signs into two categories: (1) ideological signs,
which displayed a particular viewpoint; and (2) temporary directional signs, which point people
toward a particular event. Ideological signs were always allowed, while temporary directional signs
werent allowed to be posted 12 hours before the event or 1 hour after. The government asserted
aesthetic and safety issues as their interests. A church that wished to advertise the times of its services
sued.
Issue: Whether this sign law is content-based or content-neutral.
Ruling/Rationale: Content-based. The Towns Sign Code is content based on its face. And it does not
pass strict scrutiny. This law is not nearly sufficiently tailored to pass this bar.

B. Judicial Speech.

--Republican Party of Minnesota v. White, 536 U.S. 765 (2002) (per Scalia, J.).
Facts: Minnesotas announce clause prohibited a judicial candidate from stating his views on any
specific nonfanciful legal question within the province of the court for which he is running. In 1996
after a lawyer running for the Supreme Court of Minnesota distributed campaign literature which
criticized several of the courts decisions on issues such as crime, welfare, and abortiona complaint
alleging that this literature violated the announce clause was filed. The lawyer withdrew from the race
to avoid further complaints, which might have damaged his law practice. The lawyer then, along with
other plaintiffs including a state political party, filed an action against officers of the agency in the
United States District Court for the District of Minnesota, which action sought (1) a declaratory

14
This is amazingly stupidignore it.
12
 judgment that the announce clause violated the Federal Constitution's First Amendment and (2) an
injunction barring the enforcement of the clause.
Issue: Whether a state may prohibit candidates for judicial office from speaking on certain political
issues in order to maintain the appearance of impartial courts.
Ruling/Rationale: No. Under the strict-scrutiny test, the party supporting the rule has the burden to
prove that the rule is (1) narrowly tailored, to serve (2) a compelling state interest. In order to show that
the rule is narrowly tailored, the party must demonstrate that it does not unnecessarily circumscribe
protected expression. This law is not narrowly tailored to serve a compelling state interest, since a
clause prohibiting public commitments to particular views only during election campaigns would be too
underinclusive to serve such a purpose.
--Under any definition of impartiality, the announce clause fails strict scrutiny. First, it is plain that
the clause is not narrowly tailored to serve impartiality (or its appearance) in the traditional sense of the
word, i.e., as a lack of bias for or against either party to the proceeding. Indeed, the clause is barely
tailored to serve that interest at all, inasmuch as it does not restrict speech for or against particular
parties, but rather speech for or against particular issues. Second, although impartiality in the sense of
a lack of preconception in favor of or against a particular legal view may well be an interest served by
the announce clause, pursuing this objective is not a compelling state interest, since it is virtually
impossible, and hardly desirable, to find a judge who does not have preconceptions about the law. Third,
the Court need not decide whether achieving impartiality (or its appearance) in the sense of
openmindedness is a compelling state interest because, as a means of pursuing this interest, the
announce clause is so woefully underinclusive that the Court does not believe it was adopted for that
purpose. Respondents have not carried the burden imposed by strict scrutiny of establishing that
statements made during an election campaign are uniquely destructive of openmindedness.
--Debate on the qualifications of candidates is at the core of the electoral process and of the First
Amendment freedoms, not at the edges. The role that elected officials play in society makes it all the
more imperative that they be allowed freely to express themselves on matters of current public
importance. It is simply not the function of government to select which issues are worth discussing or
debating in the course of a political campaign. The United States Supreme Court has never allowed the
government to prohibit candidates from communicating relevant information to voters during an
election.
--The greater power to dispense with elections altogether does not include the lesser power to conduct
elections under conditions of state-imposed voter ignorance. If the state chooses to tap the energy and
the legitimizing power of the democratic process, it must accord the participants in that process the First
Amendment rights that attach to their roles.
(Stevens, J., dissenting).
The Supreme Court erred by (1) obscuring the fundamental distinction between campaigns
for the judiciary and those for policymaking offices; (2) thereby incorrectly assuming that
elected judgeswho, no less than appointed judges, occupied a special office of trustought
to have the same freedom as other elected officials to express themselves on public issues;
(3) inaccurately appraising the importance of judicial independence and impartiality, which,
even in its narrowest sense of lack of bias toward or against a party, was served by the
announce clause; and (4) failing to recognize the difference between statements made in
articles or opinions and those made on the campaign trail, where the campaign statements
that would be prohibited by the announce clause were commonly intended to convey a
message that the candidates mind was not open on a particular issue.
(Ginsburg, J., dissenting).
Ginsburgs phrasing of the issue: [W]hether the First Amendment stops Minnesota from
furthering its interest in judicial integrity through this precisely targeted speech restriction.
Legislative and executive officials serve in representative capacities. [T]heir primary
function is to advance the interests of their constituencies. Candidates for political

13
 officesmust be left free to inform the electorate of their positions on specific issues.
Judges, however, are not political actors. They do not sit as representatives of particular
persons, communities, or parties; they serve no faction or constituency. They must strive
to do what is legally right, all the more so when the result is not the one the home crowd
wants. Rehnquist, Dedicatory Address: Act Well Your Part: Therein All Honor Lies, 7
Pepperdine L. Rev. 227, 229-300 (1980). Thus, the rationale underlying unconstrained
speech in elections for political officethat representative government depends on the
publics ability to choose agents who will act at its behestdoes not carry over to campaigns
for the bench.

C. Rehnquist being an idiot.

--City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) (per Rehnquist, J.).
Facts: In 1980, plaintiff purchased two movie theatres with the intent to make them into adult theatres.
Subsequently, the Renton City Council passed an ordinance that prohibited any adult motion picture
theatre from locating within 1,000 feet of any residential zone. Plaintiff then sued.
Issue: Whether the government may restrict certain forms of expression via zoning laws.
Ruling/Rationale: Yes. [This] ordinance isproperly analyzed as a form of time, place, and manner
regulation. [S]o-called 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.
--[T]he Renton ordinance is aimed not at the content of the films shownbut rather at the secondary
effects of such theatres on the surrounding community. [T]he City Councils predominate concerns
were the secondary effects of adult theatres, and not with the content of adult films themselves.

D. Subsidizing Speech.

--National Endowment for the Arts v. Finley, 524 U.S. 569 (1998) (per OConnor, J.).
Facts: In 1965, Congress created the NEA, which was created to help create and sustain not only a
climate encouraging freedom of thought, imagination, and inquiry but also theconditions
facilitatingcreative talent. In 1989, however, Andres Serrano, who received $15,000 from the NEA,
created the work Piss Christa photograph of a crucifix submerged in urine. Congress claimed to be
outraged, and amended the NEAs enabling statute, requiring the chairman of the NEA to take general
standards of decency and respect for the diverse beliefsof the American public into account.
Serranos NEA funds were then removed.
Issue: Whether the government can selectively subsidize certain art based upon its content.
Ruling/Rationale: Yes. Congress may selectively fund a program to encourage certain activities it
believes to be in the public interest, without at the same time funding an alternative program which
seeks to deal with the problem in another way. Rust v. Sullivan, 500 U.S. 173, 193 (1991) (per
Rehnquist, J.). In doing so, the government has not discriminated on the basis of viewpoint; it has
merely chosen to fund one activity to the exclusion of the other. Id.
If there is a bedrock principle underlying the First Amendment, it is that the government
may not prohibit the expression of an idea simply because society finds the idea itself
offensive or disagreeable. Texas v. Johnson, 491 U.S. 397 (1989).
* The First Amendment does more than just bar government from intentionally suppressing
speech of which it disapproves. It also generally prohibits the government from excepting
certain kinds of speech from regulation because it thinks the speech is especially valuable.
TBS v. FCC, 512 U.S. 622, 67778 (1994) (OConnor, J., concurring/dissenting).

14
E. Government Speech.

--Government speech is not governed by the Free Speech Clause. Pleasant Grove v. Summum, 555 U.S. 460
(2009). It is, however, still governed by other provisions of the Constitution, e.g., the Establishment Clause. Id.
A government display is considered government speech if a reasonable person would

--Pleasant Grove v. Summum, 555 U.S. 460 (2009) (Alito, J.).

Facts: The City of Pleasant Grove allowed private groups to donate monuments to the Citys park. The
park contained monuments to the Citys firestation, September 11th, the Ten Commandments, etc. On
several occasions, the President of Summum15 contacted the Citys mayor, requesting that the Church
be allowed to erect a monument to their seven aphorisms. The mayor denied their requests.
Issue: Whether the governments inclusion of one viewpoint in a public place requires the inclusion of
other viewpoints in the same place.
Ruling/Rationale: No. This is government speech; and the Free Speech Clause does not govern
government speech. Although many of the monuments were not designed or built by the
[government] and were donatedby private entities, the City decided to accept those donations and to
display them in the Park. However, this is not to say that the government may display whatever it
wants; government speech must comport with the Establishment Clause.

--Walker v. Sons of Confederate Veterans, 576 U.S. ___ (2015) (per Breyer, J.).
Facts: Texas, like many states, allows the DMV to craft personalized license plates. For example, a
driver may customize a license plate on the DMVs website and the DMV will create the plate for a
price. There were plates advertising restaurants, football teams, NGOs, etc. on Texas highways. The
Sons of Confederate Veterans (SCV) then requested plates adorning the Confederate flag. The plates
were denied. The SCV then challenged the denial, arguing that the government had created a limited
public forum by allowing customizable license plates.
Issue: Whether a customizable license plate program, run by the state, creates a limited public forum.
Ruling/Rationale: No. This is government speech; therefore, the Free Speech Clause does not apply.
Alito, J., dissenting: By allowing its citizens to customize their license plates to convey a
certain message to other motorists the government created a limited public forum.
Accordingly, the law must remain viewpoint-neutral. Additionally, there is no way this is
government speech. Texas issued license plates adorning the University of Oklahomas logo
and a number of other out-of-state establishments. No reasonable person would see these
messages and think the State of Texas was condoning these institutions.

F. Vagueness & Overbreadth.

--Laws that regulate speech can be challenged as facially unconstitutional on the grounds they are void for
vagueness or substantially overbroad. A successful facial challenge usually means that the law will be entirely
invalidated.
--A law is unconstitutionally vague is a reasonable person cannot tell what speech is prohibited and what is
permitted. For example, in Kolender v. Lawson, 461 U.S. 352, 357 (1983), the Court invalidated a California
loitering law, holding that the void-for-vagueness doctrine requires that a penal statute define the criminal
offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a
manner that does not encourage arbitrary and discriminatory enforcement. See also Papachristou v.
Jacksonville, 405 U.S. 156 (1972). And in Baggett v. Bullitt, 377 U.S. 360 (1964), the Court voided a states
loyalty oath that prevented any subversive person from being employed in the state and required a person to
swear that they were not such a person.

15
Summum is an obscure religion that bases itself on weird pseudo-Egyptian euphemisms.
15
--A law is unconstitutionally overbroad when it regulates substantially more speech than necessary to achieve
its goal. Los Angeles v. Jews for Jesus, 482 U.S. 569 (1987) (holding that a resolution banning all First
Amendment activities at the Los Angeles International Airport violated the First Amendment). Additionally,
even if a person was punished for speech that is not constitutionally protected, they may make a facial challenge
to the law because it might chill third parties protected speech. See, e.g., Schad v. Borough of Mount Ephriam,
452 U.S. 61 (1981) (holding that appellants speech was obscene, and therefore not protected by the 1st
Amendment; but also holding they are entitled to rely on the impact of the ordinance on the expressive
activities of others).

G. Prior Restraint.

The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous
restraints upon publications, and not in freedom from censure for criminal matter when published.
William Blackstone (1769)

--The Court has noted that the chief purpose of [the First Amendments] guaranty [is] to prevent previous
restraints uponpublication[s]. New York Times Co. v. United States, 403 U.S. 713 (1971) (Brennan, J.,
concurring) (citing Near v. Minnesota, 283 U.S. 697 (1931)). Accordingly, [a]ny system of prior restraints of
expression comes to this Court bearing a heavy presumption against its constitutional validity. Id. The two
most common kinds of prior restraints are (1) court-ordered silence (gag orders), see Nebraska Press Assn v.
Stuart, 427 U.S. 539 (1976) and (2) pre-speech licensing schemes, see Watchtower Bible v. Stratton, 536 U.S.
150 (2002).

1. The big ones.

--Near v. Minnesota, 283 U.S. 697 (1931) (per Hughes, C.J.).

Facts: In 1925, Minnesota passed a law that allowed the government to abate malicious, scandalous,
and defamatoryperiodical[s]. At the height of yellow journalism, J. M. Near published The
Saturday Press, a Minneapolis newspaper. There, he published several articles claiming that the
Minneapolis police chief and other public officials were under the thumb of Minneapolis Jewish
gangs.16 The public officials obtained an injunction preventing Near from publishing his newspaper.
Near challenged the law, arguing it abridged the freedom of the press.
Issue: Whether the government can prohibit the publication of defamatory or libelous articles.
Ruling/Rationale: No. The 1st Amendment prohibits prior restraint. The recognition of authority to
impose previous restraint upon publicationto protect the community againstcharges of
misconductwould carry with it the admission of the authority of the censor against which the
constitutional barrier was erected.

--New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam).17
Facts: In 1971, Daniel Ellsberg leaked the Pentagon Papers. These Papers were a classified
government-conducted study of the Vietnam War, conducted primarily by Robert McNamara. The New
York Times began to publish these Papers in installments. After the third installment, Richard Nixon and
William Rehnquist obtained an injunction, preventing the Times from publishing the subsequent
installments. Ellsberg then leaked the Papers to the Washington Post. Nixon then, again, sought an
injunction. The Times and the Post then challenged the injunctions in federal court.
Issue: Whether the 1st Amendment bars a court from prohibiting a newspaper from publishing material
whose disclosure would pose grave and immediate danger to the security of the United States.

16
J. M. Near was a bit of a bigot.
17
While the case was per curiam, each Justice wrote a concurring or dissenting opinion, for a total of ten opinions.
16
 Ruling/Rationale: Yes. Any system of prior restraints of expression comes to this Court bearing a
heavy presumption against its constitutional validity.

2. Prior restraint and fair trials.

--Nebraska Press Association v. Stuart, 427 U.S. 539 (1976) (per Burger, C.J.).
Facts: Six people were murdered in a small Nebraska town. The local Nebraska press, unsurprisingly,
followed the investigation of these murders very closely. Eventually, Erwin Charles Simants was
arrested in connection with these murders. While in police custody, Simants confessed to the murders.
The State judge, however, was worried that he would be unable to find an impartial jury if the press
reported about Simants confession. In response, the judge issued a gag order toward the Nebraska
Press disallowing them to report any facts that were strongly implicative of the accused. The
Nebraska Press Association challenged the constitutionality of this gag order.
Issue: Whether the government can use gag orders (i.e., prior restraint) to ensure a fair trial for
defendants.
Ruling/Rationale: No. Prior restraint is rarely, if ever, allowed. Only if the gravity of the evil,
discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the
danger, will prior restraint be allowed. In determining whether prior restraint is allowed, the Court
must look to the effectiveness of the gag order and the available alternatives to the gag order. Here,
there are plenty of available alternatives, e.g., change of venue, postponement, jury screening, heavy
instructions, sequestration, etc. Accordingly, this gag order is unconstitutional.

3. Rehnquist and book burning.

--Alexander v. United States, 509 U.S. 544 (1993) (per Rehnquist, J.).
Facts: Alexander sold and shipped sexually explicit films out of Minneapolis, Minnesota. The
government eventually charged and convicted him of 17 counts of obscenity and 3 counts of violating
RICO. All of the obscene materials were destroyed. Alexander lost over $9 million and was
sentenced to six years in prison. He challenged his conviction on 1st and 8th Amendment grounds.
Issue: Whether the forced forfeiture of a business engaged in expressive activity is an unconstitutional
prior restraint.
Ruling/Rationale: No. To accept [Alexanders] argument would virtually obliterate the
distinctionbetween prior restraints and subsequent punishments.
Kennedy, J., dissenting: The Court today embracesthe Governments destruction of a book
and film business and its entire inventory of legitimate expression as punishment for a single past
speech offense. Until now I has thought one could browse through any bookstore in the
United States without fear that the proprietor had chosen each item to avoid risk to the whole
inventory and.to the business itself. In other words, the Court has just become involved in
the business of burning books. If there is one activity the First Amendment forbids, it would be
the government burning books.

4. Licensing as a prior restraint.

--Watchtower Bible & Tract Society of New York v. Village of Stratton, 536 U.S. 150 (2002) (per Stevens, J.).
Facts: The Village of Stratton passed an ordinance making it a misdemeanor to engage in door-to-door
advocacy without receiving a permit. Several Jehovahs Witnesses challenged the ordinance as an
unconstitutional prior restraint.
Issue: Whether requiring people to obtain a license before door-to-door hand billing violates the 1st
Amendment.

17
 Ruling/Rationale: Yes. [I]t is offensive, not only to the values protected by the First Amendment, but to
the very notion of a free society, that in the context of everyday public discourse a citizen must first
inform the government of her desire to speak to her neighbors and then obtain a permit to do so.
In other cases, the Court has held that speech-related licensing schemes will be allowed only if:
(1) the government has an important reason for licensing; (2) there are clear criteria leaving
almost no discretion to the licensing authority; and (3) there are procedural safeguards
surrounding the licensing requests.

H. What is an infringement of the freedom of speech? Note: you can regulate time, place, and manner of
speech, but NOT the content.

1. Prohibitions on compensation.

--United States v. National Treasury Employees Union, 513 U.S. 454 (1995) (Stevens, J.).
Facts: In 1989, Congress passed a law the prohibited federal employees from accepting compensation
for making speeches or writing articles, even when unrelated to the employees official duties.
Issue: Whether the government can prohibit compensation for speech made by its employees.
Ruling/Rationale: No. Even though [the plaintiffs] work for the Government, they have not
relinquished the First Amendment rights they would otherwise enjoy as citizens to comment on matters
of public interest. They seek compensation for their expressive activities in their capacity as citizens,
not as Government employees.18 In other words, this law (although content-neutral) is substantially
overbroad.

2. Compelled speech.

--West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624 (1943) (Jackson, J.).
Facts: West Virginia had a law that required all children to salute the U.S. flag for the Pledge of
Allegiance in schools. Several Jehovahs Witnesses refused to salute the flag, saying it was against
their religion. The parents of these children challenged the law.
Issue: Whether the government can compel people to engage in expressive activity.
Ruling/Rationale: No. We think the action of the local authorities in compelling the flag salute and
pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit
which it is the purpose of the First Amendment to our Constitution to reserve from all official control.
--It is nowcommonplace that censorship or suppression of expression of opinion is tolerated by our
Constitution only when the expression presents a clear and present danger of action of a kind the State
is empowered to prevent and punish.
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of
political controversy, to place them beyond the reach of majorities and officials and to establish
them as legal principles to be applied by the courts. Ones right tofree speech, a free press,
freedom of worship and assembly, and other fundamental rights may not be submitted to vote;
they depend on the outcome of no elections.
In Wooley v. Maynard, 430 U.S. 705 (1977), the Court allowed a New Hampshire resident to
cover up the Live Free or Die motto on his state-issued license plate.

--Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006) (per Roberts, C.J.).
Facts: Because of the militarys dont ask, dont tell policy, several schools banned military recruiters
from their campuses. In response, Congress passed the Solomon Amendment (1996), which withheld

18
Einstein was a government employee when he published his papers on relativity.
18
 federal funds from any school that forbids military personnel from the campus. Several law schools
challenged the Solomon Amendment.
Issue: Whether the government can compel (private) schools to allow certain speech by withholding
federal funds.
Ruling/Rationale: Yes. This sort of recruiting assistanceis a far cry from the compelled speech in
Barnette and Wooley. There is nothing in this case approaching a government-mandated pledge or
motto that the school must endorse. In addition, this is not a situation where the government is
requiring an individual to speak the governments message. See, e.g., Miami Herald Publishing Co. v.
Tornillo, 418 U.S. 241 (1974). The schools are not required to agree with the military; in fact, they can
explicitly disagree with their messages.

--McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) (Stevens, J.).
Facts: Ohio passed a law that prohibited campaign literature from being published anonymously (for
example, we wouldnt want the Koch Bros. or Chevron distributing libelous handbills without
disclosure that they were the authors). In 1988, Margaret McIntyre published and distributed
anonymous handbills opposing a school superintendent and school-related taxes.
Issue: Whether the government can prevent a speaker from delivering an anonymous message.
Ruling/Rationale: Not very often. The law must meet strict (or exacting) scrutiny.

I. Unprotected and less-protected speech.

--[E]ven advocacy of [a law] violation, however reprehensible morally, is not a justification for denying free
speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be
immediately acted on. Whitney v. California, 274 U.S. 357, 376 (1927) (Brandeis, J., concurring).

--As a general rule, the government cannot punish speech unless it is directed to incit[e] or produc[e] imminent
lawless action and is likely to incite or produce such action. Brandenburg v. Ohio, 395 U.S. 444 (1969). The
Court, however, has carved out several areas of unprotected speech. In Chaplinsky v. New Hampshire, 315
U.S. 568 (1942), for example, a unanimous Court held that [t]here are certain well-defined and narrowly
limited classes of speech, the prevention and punishment of which has never been thought to raise any
Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or
fighting wordsthose which by their very utterance inflict injury or tend to incite an immediate breach of the
peace.
The Court, however, has been very reluctant to use Chaplinskys fighting words standard. More often than
not, the Court has declared fighting words statutes to be unconstitutionally vague or overbroad. See Gooding
v. Wilson, 405 U.S. 518 (1972). Yet, if a fighting words statute is drafted too specifically it will likely be
declared unconstitutional for being content-based. See R. A. V. v. St. Paul, 505 U.S. 377 (1992). The Courts
modern decisions basically show that the fighting words doctrine is a nullity.

--The R.A.V. v. St. Paul case, moreover, illustrates an important point within this unprotected-areas-of-speech
section: the 1st Amendments primary concern is while there are certain classes of speech that are
unprotectede.g., obscenity, libel, and fighting wordsthe government cannot make content-based
restrictions within the areas because of the fear of viewpoint discrimination. Within this unprotected speech
realm of cases, the only time the government can make content-based restrictions is (1) when the basis for the
content discrimination consists entirely of the very reason the entire class of speechis proscribable;19 or (2)
when the government is regulating a subclass of the unprotected speech that has particular secondary
effectsso that the regulation is justified without reference tocontent

19
In other words, the government can only ban obscenity because of its prurience, not because of a particular viewpoint within the
obscene material. For example, the government could proscribe particular types of super-obscene material; but it could not only ban
obscene material with particular political messages.
19
 1. Incitement.

--Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam).

Facts: The defendant was a member of the Ku Klux Klan, and was convicted under Ohios Criminal
Syndicalism Act. The statute made it illegal to advocatethe duty, necessity, or propriety of crime,
sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political
reform and for teach[ing] or advocate[ing] the doctrines of criminal syndicalism. The defendants
conviction was supported by a video that showed the defendant, armed with a shotgun and a bible,
saying seditious things and saying: Personally, I believe the nigger should be returned to Africa, the
Jew returned to Israel.
Issue: Whether the State may punish a person for speech related to syndicalism or racism.
Ruling/Rationale: No. [T]he constitutional guarantees of free speech and free press do not permit a
State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is
directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
Measured by this test, Ohios Criminal Syndicalism Act cannot be sustained, and Whitney v.
California is overruled.
As a factor test, Brandenburg says that the government can only punish speech if it is (1)
intended and (2) likely to produce (3) imminent (4) lawless action.
In Hess v. Indiana, 414 U.S. 105 (1973), the defendant, along with 100150 other people, was
leading an anti-Vietnam War march through the streets of the University of Indiana. The sheriff
moved the protesters to the side of the street. The defendant then said, Well take the fucking
street again. He was then arrested, and later convicted, for disorderly conduct. The Supreme
Court overturned his conviction, citing Brandenburg.
Brandenburg MIGHT only apply to political speech/changing social conditions; we dont really
know
So it wouldnt apply to medical advice/stuff on TV that makes kids do things

--Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (per Roberts, C.J.).
Facts: In the wake of 9/11, Congress made it a federal crime to knowingly provid[e] material support or
resources to a foreign terrorist organization. The statute further gave the Secretary of State the power
to determine which groups fall within this category. Plaintiffs wished to donate to the Tamil Tigersa
Sri Lankan militant group that wanted to create a independent state in northern Sri Lankawhich had
been identified as a terrorist organization by the Secretary of State. They challenged the law, arguing
that the law was void for vagueness and, in the alternative, an unconstitutional restriction on free speech.
Issue: Whether the government can prevent people from donating to terrorist organizations.
Ruling/Rationale: Yes. The Court issued a narrow ruling, applying it only to the plaintiffs in this case.
The Court, however, did not cite Brandenburg once.20 Justice Breyer notes this in his dissent.

2. Fighting words.

--Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).

Facts: New Hampshire had a law that stated: No person shall address any offensive, derisive or
annoying word to any other person who is lawfully in any street or other public place Chaplinsky, a
Jehovahs Witness, was distributing literature in Rochester, NH. Citizens of Rochester started to
complain to the city Marshall, complaining that Chaplinsky was denouncing religion as a racket. The
20
The opinion does not follow the normal framework. This is clearly a content-based restriction on freedom of expression. So unless
this expression is categorized as unprotected speech, it should run the gamut of strict scrutiny. The Court takes neither path. Chief
Justice Roberts test echoes back to the early-1900s version of incitement.
20
 Marshall did not arrest Chaplinsky, but he warned him that the crowd was getting uneasy. Eventually, it
seemed as if the crowd was about to riot. The Marshall then rewarned Chaplinsky, during which time
Chaplinsky said, You are a God damned racketeer and a damned fascist and the whole government
of Rochester are fascists or agents of fascists. He was then charged under New Hampshires
aforementioned law.
Issue: Whether the State may punish words that are likely to incite violence.
Ruling/Rationale: Yes. [W]e [cannot] say that the application of [this] statutesubstantially or
unreasonably impinges upon privileges of free speech. Argument is unnecessary to demonstrate that the
appellations damn racketeer and damn fascist are [fighting words].21
There are certain well-defined and narrowly limited classes of speech, the prevention and
punishment of which has never been thought to raise any Constitutional problem. These include
the lewd and obscene, the profane, the libelous, and the insulting or fighting wordsthose
which by their very utterance inflict injury or tend to incite an immediate breach of the peace.
Gooding v. Wilson, 405 U.S. 518 (1972), illustrates the Courts usual approach to fighting words
statutesfind them unconstitutional for being unconstitutionally vague or overbroad.
NOTE: Fighting Words Doctrine applies to speech that is directed towards a person, not a group
[directed to the person of the hearer; Cantwell]

--R. A. V. v. The City of St. Paul, 505 U.S. 377 (1992) (per Scalia, J.).
Facts: R.A.V. and several other teenagers assembled a crudely made cross out of chair legs. They then
allegedly burned this cross in the yard of a black family down the street from R.A.V.s house. R.A.V.
was then charged under the St. Paul Bias-Motivated Crime Ordinance, which provides:

Whoever places on public or private property a symbol, object, appellation, characterization or graffiti,
including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable
grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion
or gender commits disorderly conduct and shall be guilty of a misdemeanor.

Petitioner sought to have the law struck down due to it being overbroad and impermissibly content
basedthe trial court agreed; but the Minn. Supreme Court reversed. The Minnesota Supreme Court
rejected the R. A. V.s claim because the words in this law (and R. A. V.s actions) only encompassed
fighting words.
Issue: (1) Whether the scope of Chaplinsky should be modified in order to conclude this law is
substantially overbroad.
(2) Whether petitioners actions per se are protected by the First Amendment.
Ruling/Rationale: (1) No. Petitioners request that the scope of the Chaplinsky formulation be modified,
thereby invalidating the ordinance as substantially overbroad, need not be reached, since the ordinance
unconstitutionally prohibits speech on the basis of the subjects the speech addresses.
(2) Yes. A few limited categories of speech, such as obscenity, defamation, and fighting words, may be
regulated because of their constitutionally proscribable content. The government may not, however,
extend these words to regulate their nonproscibable content. In other words, fighting words do not
receive 1st Amendment protection because their very utterance inflict[s] injury [and] tend[s] to incite an
immediate breach of the peace. Therefore, proscribing the acts of hostility or favoritism to a
particular race to fighting words is unconstitutional.
--The ordinanceeven as narrowly construed by the State Supreme Courtis facially unconstitutional
because it imposes special prohibitions on those speakers who express views on the disfavored subjects
of race, color, creed, religion or gender. The government may not selectively silence speech because
of its content.

21
It isnt?
21
 --There may, however, be two circumstances where speech may be banned because of its content: (1)
the most lascivious, obscene materials, see Miller v. California (1973); and (2) when the speech is
associated with poor secondary effects, Renton v. Playtime Theatres (1986).

3. Hostile audiences and racist speech.

--In Feiner v. N.Y., the Court held that the government can silence a speaker if he there is a clear and present
danger that the speech will create a serious substantive evil. The modern Court, however, has adopted Justice
Blacks dissent in Feiner, requiring police to make all reasonable efforts to protect [the speaker]. If, however,
the crowd is becoming so restless that the police are unable to preserve peace and order, the speaker may be
silenced.

--Feiner v. New York, 340 U.S. 315 (1951) (per Vinson, C.J.).
Facts: In 1949, in Syracuse, NY, Feiner gave a soapbox speech that was derogatory toward President
Truman and Syracuses local government. A crowd began to form. Some people agreed with Feiner;
some did not. Eventually, the police requested that Feiner stop speaking because the crowd was getting
restless. Feiner refused to stop speaking. The police then arrested him for disorderly conduct.
Issue: Whether the government can silence a speaker because his words may provoke a hostile audience.
Ruling/Rationale: Yes. Free speech does not extend when the speaker passes the bounds of argument or
persuasion and undertakes incitement to riot Here, the police were merely exercise[ing]their
power and duty to preserve peace and order.
Black, J., dissenting: Allowing the police to arrest a speaker because a group of people
vehemently disagree with his message makes a mockery of the free speech guarantees on the
First and Fourteenth Amendments.22 Even if Feiners speech did create a critical situation, the
police [still] had [an] obligation to protect [his] constitutional right to talk. Of course police
have the power to prevent breaches of the peace. But if, in the name of preserving order,
theyinterfere with a lawful public speaker, they must make all reasonable efforts to protect
him. Here, the police had a duty to protect [Feiners] right to talk, even to the extent of
arresting the man who threaten[s] to interfere.

--Beauharnais v. Illinois, 343 U.S. 250 (1952) (per Frankfurter, J.).

Facts: Illinois had a statute that made it unlawful for any personto sell [or] presentany lithograph
[or] moving picturewhichportrays depravity, criminality, unchastity, or lack of virtue of a class of
citizens of any race, color, creed or religionwhich is productive of breach of the peace or riots
Bauharnais was convicted under this statute for distributing leaflets calling for the Mayor of Chicago to
halt the further encroachment, harassment, and invasion of white peopleby the Negro and to call
for One million self respecting white people in Chicago to unite against the Negros rapes, robberies,
knives, guns, and marijuana.
Issue: Whether the 1st Amendment protects a persons ability to slander a group of people based on their
race or religion.
Ruling/Rationale: No. This sort of group libellike all forms of libelis unprotected by the 1st
Amendment. The 1st Amendment does not allow you to foster and disseminate hateful, untruthful
speech about people because of their race.
Black, J., dissenting: In this case, Beauharnais was criminally prosecuted for distributing a
leaflet. The conviction rests solely on the leaflets content, not on any reasonable time, place,
and manner restriction. This statute, accordingly, should have been put through the gamut of

22
Remember, since this is Hugo Black dissenting he likely believes the 14 th Amendment guarantees the freedom of speech through its
Privileges or Immunities Clause, as opposed to the Due Process Clause.
22
 strict scrutiny and likely overturned. Instead, [t]odays case degrades First Amendment
freedoms to the rational basis level.
Subsequent decisions show that Beauharnais is likely no longer good law. In N.Y. Times
v. Sullivan, the Court expressly rejected the idea that libel liability is not limited by the 1st
Amendment. And R. A. V. v. St. Paul shows that the Court is likely to overturn almost all
bans of political speech.
See also National Socialist Party of America v. Village of Skokie, 432 U.S. 43
(1977) (allowing neo-Nazis to march through Skokie, Illinois, a town with a large
Jewish population, despite numerous threats).

--Virginia v. Black, 538 U.S. 343 (2003) (per OConnor, J.) (plurality opinion).
Facts: In 1998, Barry Black led a KKK rally on his private property where they discussedKlan stuff.
The Sheriff observed this rally from the side of the road. Eventually, in normal KKK fashion, Black lit a
cross on fire. The Sheriff then arrested Black under a Virginia statute that banned cross burning with
an intent to intimidate a person or group of persons. The statute further provided that the burning of a
cross is prima facie evidence of an intent to intimidate.
Issue: Whether cross burning is protected by the 1st Amendment.
Ruling/Rationale: Maybe. On the one hand, a state, consistent with the First Amendment, may ban
cross burning carried out with the intent to intimidate. If a speaker is making true threats, the State
may prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm.
Here, however, the statutes language shows indiscriminate coverage that blurs the distinction
between proscribable threats of intimidation and the KKKs protected messages of shared ideology.
In short, the States may proscribe threats of intimidation, which would often include the
burning of a cross because such expression has a long and pernicious history as a signal of
impending violence. The statute that proscribes this content, however, must be narrowly tailored
so that the defendant does not have the burden to disprove his intent.

4. Obscenity.

--Most 1st Amendment scholars agree that the Courts approach to obscenity is problematic. For example, in his
dissent in Paris Adult Theatre v. Slaton, Justice Brennan argued that [a]ny efforts to draw a constitutionally
acceptable boundary on state power [in the area of obscene speech] must resort to such indefinite concepts as
prurient interest, patent offensiveness, serious literary value, and the like. Nonetheless, the Court still
abides by the test set forth in Miller v. California:

The basic guidelines for the trier of fact must be: (a) whether the average person, applying contemporary community
standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts
or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c)
whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

--Roth v. United States, 354 U.S. 476 (1957) (per Brennan, J.).
Facts: Congress passed a law that forbade the mailing of [e]very obscene, lewd, lascivious, or filthy
book, pamphlet, picture, paper, writing, print, or other publication of an indecent character.
Issue: Whether obscenity is protected by the 1st Amendment.
Ruling/Rationale: No. The purpose of the 1st Amendment to assure unfettered interchange of ideas for
the bringing about of political and social changes desired by the people. Accordingly, [a]ll ideas
having even the slightest redeeming social importanceunorthodox ideas, controversial ideas, even
ideas hateful to the prevailing climate of opinionhave the full protection of the [First Amendment].

23
 Obscenity, on the other hand, is without redeeming social importance. It is material which deals with
sex in a manner appealing to the prurient interest.23 Therefore, it is unprotected by the 1st Amendment.
Douglas, J., dissenting: Whether a book or picture is protected by the 1st Amendment should not
be governed by the observers purity of thought. By the standard set in this case, punishment
is inflicted for thoughts provoked, not for [any] overt acts [or] antisocial conduct. To allow
the State to step in and punish mere speechthat the judge or the jury thinks has an undesirable
impact on thoughts but that is not shown to be a part of unlawful action is drastically to curtail
the First Amendment.

--Miller v. California, 413 U.S. 15 (1973) (per Burger, C.J.).

Facts: California had a law that made it a misdemeanor to knowingly distribute obscene materials.
Miller owned a pornography mailing business. To promote his business, Miller made and distributed
fliers advertising films entitled: Intercourse, Man-Woman, Sex Orgies Illustrated, and An
Illustrated History of Pornography. Several people complained, and Miller was eventually convicted
under this statute.
Issue: Whether obscenity is protected by the First Amendment.
Ruling/Rationale: No. This much has been categorically settled by the Court, that obscene material is
unprotected by the First Amendment.
--The basic guidelines for the trier of fact must be: (a) whether the average person, applying
contemporary community standards would find that the work, taken as a whole, appeals to the prurient
interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific value.
In this test, prong (a) is gauged under local, community standards; while prong (c) is gauged
under national standards.
In Pope v. Illinois, 481 U.S. 497 (1987), the Court held that the contemporary community
standard prong must be determined by a national standardhow the work would be appraised
across the country The proper inquiry [is] whether a reasonable person would find such value
in the material.
And in Jenkins v. Georgia, 418 U.S. 153 (1974), the Court held that the Jack Nicholson movie
Carnal Knowledge was not obscene because [t]here is no exhibition whatever of the actors
genitals, lewd or otherwise. There are occasional scenes of nudity, but nudity alone is not
enough to make material legally obscene under the Miller standards.

--Paris Adult Theatre v. Slaton, 413 U.S. 49 (1973) (per Burger, C.J.).
Facts: The State of Georgia filed a civil complaint against two Atlanta theatres, alleging that the theatres
were exhibiting obscene films to the public. The theatres held themselves out as adult theatres and
each had a sign on their doors saying: Adult TheatreYou must be 21 and able to prove it. If viewing
the nude body offends you, Please Do Not Enter.
Issue: Whether the First Amendment protects adult films.
Ruling/Rationale: No. We hold that there are legitimate state interests at stake in stemming the tide of
commercialized obscenity, even assuming it is feasible to enforce effective safeguards against exposure
to juveniles and to passersby. These include the interest of the public in the quality of life and the total
community environment, the tone of commerce in the great city centers, and, possibly, the public safety
itself.

23
In a footnote, the Court further described obscenity as material having a tendency to excite lustful thoughts. A thing is obscene
if, considered as a whole, its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or exertion,
and if it goes substantially beyond customary limits of candor in description or representation of such matters.
24
 Brennan, J., dissenting: I am convinced that the approach initiated 16 years ago in Roth v.
United States (1957), and culminating in the Courts decision today, cannot bring stability to this
area of the law without jeopardizing fundamental First Amendment values, and I have concluded
that the time has come to make a significant departure from that approach. The First
Amendment likely does not protect many obscene forms of speech. However, whenever this
court attempts to clarify what is obscene and what is not, it will always be overbroad. Any
efforts to draw a constitutionally acceptable boundary on state power must resort to such
indefinite concepts as prurient interest, patent offensiveness, serious literary value, and the
like. These words have little meaning, and often depend on the idiosyncrasies of the listener.
This is not an acceptable constitutional standard.

5. Child pornography as narrow category of unprotected speech.

--There are several cases that show the Courts approach to child pornography and the 1st Amendment. In
Stanley v. Georgia (1969) (per Marshall, J.), the Court held that the State cannot punish the mere possession of
obscene materials. In Ferber v. New York (1982), however, the Court held that child pornography was not
governed by Millers obscenity standard. This ruling led the Court in Osborne v. Ohio (1990) to conclude that
the State could punish the mere possession of child pornography.
It is important to note that the Courts rationale in Ferber rested primarily on the States interest to protect
children. And Ashcroft v. Free Speech Coalition (2002) shows that if a law restricts more speech than is
necessary to protect children, it will likely be struck down.

--New York v. Ferber, 458 U.S. 747 (1982) (per White, J.).
Facts: Paul Ferber, an owner of an adult bookstore in Manhattan, was charged under the law after he
sold an undercover police officer two films depicting young boys masturbating. He was charged under a
New York statute that made it a crime to promote any performance [that] includes sexual conduct by a
child less than sixteen years of age. He appealed his conviction, arguing that the law was substantially
overbroad.
Issue: Whether a law that generally bans child pornography violates the 1st Amendment.
Ruling/Rationale: No. This content-based restriction of speech is allowable because the evil to be
restricted so overwhelmingly outweighs the expressive interests, if any, at stake Child pornography
can be restricted in this way for five main reasons:
(1) the State has a compelling interest in safeguarding the physical and psychological well-
being of a minor;
(2) the distribution of child pornography is related to the sexual abuse of children in at least two
ways:
(a) the material will follow the children for the rest of their lives; and
(b) the distribution network for child pornography must be closed if we want to
ultimately solve this problem.
(3) child pornography is rightfully criminal, and advertising and selling the material is an equal
sin of commission;
To make an analogy: a statute outlawing murder is undoubtedly constitutional; and it is
not a stretch to say that a law forbidding filming a murder and selling the tape is also
constitutional.
(4) child pornography has essentially no value; and
(5) the Courts prior cases do not contradict this holding.

25
 --The Court makes two things clear throughout this opinion: (1) laws like this must be narrowly tailored
to further the interest of protecting children, laws that exceed this narrow category may be met with
more scrutiny; and (2) the Miller standard is inapplicable to child porn due to its unique nature.

--Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (per Kennedy, J.).
Facts: In 1996, Congress passed the Child Pornography Prevention Act. This Act extended the federal
ban on child pornography to sexually explicit images that appear to depict minors but were produced
without using any real children.24 The Free Speech Coalitiona lobbying group for the pornography
industrychallenged the law.
Issue: Whether a law that prohibits the mere appearance of minors engaging in sex is unconstitutional
under the 1st Amendment.
Ruling/Rationale: Yes. The statute covers materials beyond the categories recognized in Ferber and
Miller The provision abridges the freedom to engage in a substantial amount of lawful speech. For
this reason, it is overbroad and unconstitutional. A reasonable reading of this law would likely ban
material with serious literary, artistic, political, or scientific value. Romeo and Juliet depicts minors
engaging in explicit activity.

6. Indecent speech.

--In Renton v. Playtime Theatres (1986), Rehnquist relied heavily upon Young v. American Mini Theatres
(1976) (per Stevens, J.) to reach its holding. In Renton, the Court held that the citys zoning ordinance was
content-neutral because the city councils predominant concerns were with the secondary effects of the adult
theatres. In Young, however, the Court held that the citys zoning ordinance was content-basedalthough the
Young Court upheld the ordinance because it believed the speech was of a wholly different, and lesser,
magnitude thanpolitical debate. Moreover, in City of Erie v. Paps A.M. (2000) (per OConnor, J.), the
Court adhered to Rentons content-neutral logic in holding that zoning ordinances could be used to restrict
exotic dancing.25

--Cohen v. California, 403 U.S. 15 (1971) (per Harlan, J.).

Facts: In 1968, the defendant was arrested for wearing a jacket bearing the words Fuck the Draft in the
Los Angeles County Courthouse. The jacket or incident did not incite any act of violence by anyone in
the courthouse, nor did the defendant partake any unusual actions while at the courthouse. He was
arrested for violating 415 of the California Penal Code which prohibited maliciously and willfully
disturb[ing] the peace or quiet of any neighborhood or personbyoffensive conduct He was
sentenced to 30-days imprisonment.
Issue: Whether the State can prohibit offensive conduct upon the theory that it is likely to cause
violent reaction orthat the States, acting as guardians of public morality, may properly remove [an]
offensive word from the public vocabulary consistent with the First or Fourteenth Amendments.
Ruling/Rationale: No. Absent a more particularized and compelling reason for its actions, the State
may not, consistently with the First and Fourteenth Amendments, make the simple public display of this
single four-letter expletive a criminal offense.
--While the Court can ban fighting words, that is not applicable here. There is no showing that anyone
who saw the defendant was in fact violently aroused or that appellant intended such a result.
--The State argued that the defendants speech could be curtailed in order to protect the sensitive from
crude forms of protest. The Court held otherwise. [T]he mere presumed presence of unwitting listeners
or viewers does not serve automatically to justify curtailing all speech capable of giving offense. When

24
Under a reasonable reading of the statute, films such as Midnight Cowboy, The Last Picture Show, Animal House, A Clockwork
Orange, Halloween, Fast Times at Ridgemont High, The Exorcist, Risky Business, Porkys, Bull Durham, Dirty Dancing, and The
People vs. Larry Flynt could have been subject to prosecution and potentially a five-year mandatory minimum imprisonment.
25
The Court in Paps A.M. applied OBriens symbolic speech test when concluding that the citys ordinance was content-neutral.
26
 one is outside their home they may be subject to what they consider objectionable speech (deal with it).
You dont have the right to not be offended. That the air may at times seem filled with verbal
cacophony is, in this sense not a sign of weakness but of strength. We cannot lose sight of the fact that,
in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a
privilege, these fundamental societal values are truly implicated.
Harlans opinion can be constructed in three major points: First, States cannot censor their citizens in
order to make a more civil society. Second, knowing where to draw the line between harmless
heightened emotion and vulgarity can be difficultand governmental officials cannot make
principled distinctions in this area Third, people bring passion to politics and vulgarity is simply
a side effect of a free exchange of ideasno matter how radical they may be (reminiscent of
Brandies in Whitney v. California).
[O]ne mans vulgarity is anothers lyric.

7. Commercial speech.

--Early on, the Supreme Court held that the Constitution imposes no restraint on government as [to] purely
commercial speech. Valentine v. Christensen, 316 U.S. 52 (1942). In the 1970s, however, the Court reversed
course and began to recognize that commercial speech was valuable and worthy of 1st Amendment protection.
See, e.g., Virginia State Bd. of Pharm. v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976). And in
Central Hudson and Fox, the Court held that laws restricting commercial speech must pass a form of quasi-
intermediate scrutiny (i.e., the law must be narrowly tailored to further a substantial government interest).

--Virginia State Bd. of Pharm. v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976) (per Blackmun, J.).
Facts: The Virginia State Board of Pharmacy promulgated a rule that made it unprofessional
conduct for a pharmacist to publish[], advertise[], or promote[]any price [or]
discountfor[prescription] drugs The Citizens Consumer Councilas consumers of
prescription drugsbrought suit, challenging the law under the 1st Amendment.
Issue: whether purely commercial speech is protected by the 1st Amendment.
Ruling/Rationale: Yes. The State may not completely suppress the dissemination of concededly
truthful information about entirely lawful activity, even if it is fearful of its effect upon its
disseminators andrecipients. This Virginia law should be struck down because (1) it disserves
capitalism, (2) it disproportionately affects the poor, and (3) it stifles the free flow of information.
Untruthful commercial speech, however, can be sanctioned.
In Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983) (per Marshall, J.), the Court
provided a flexible definition of what constitutes commercial speech. If the speech is (1)
an advertisement that (2) references a specific product and (3) the speaker had an economic
motivation for giving the speech, that will be sufficient for finding the speech is commercial
in nature, because it does no more than propose a commercial action.

--Central Hudson Gas & Electric Corp. v. Public Service Commn of N.Y., 447 U.S. 557 (1980) (per Powell, J.).
Facts: The Public Service Commission of the State of New York passed a regulation that completely
bans promotional advertising by an electric company. Central Hudsonessentially a monopolistic
electric company in New Yorkclaimed this regulation violated the First and Fourteenth
Amendments.
Issue: Whether the government may completely ban promotional advertising by a particular
company.
Ruling/Rationale: Sometimes. The State gave two interests to be furthered by this regulation: (a)
energy conservation; and (b) that promotional advertising will aggravate inequities caused by the
failure to base utilities rates on marginal costs. The Court synthesized a conjunctive four-part test
to use when adjudicating commercial speech:
27
 (1) Whether the expression is protected by the First Amendment;
(2) Whether the asserted governmental interest is substantial;
If the answer to these two questions is yes, the Court must determine
(3) Whether the regulation directly advances the governmental interest asserted; and
(4) Whether it is not more extensive than necessary to serve that interest.26
If the answer to the first question is no or the answer to all the questions is yes, the
government may restrict the commercial speech.27
In this case: Question 1 = Yes | Question 2 = Yes | Question 3 = Yes | Question 4 = No
--This opinion also makes clear that the 1st Amendment does not protect the false and misleading
advertisements or advertising illegal activities.
--Most regulations seem to be struck down on either step 3 or step 4 of the Central Hudson test. See
Central Hudson (step 4); 44 Liquormart (steps 3 and 4).
--In a string of cases following Central Hudson the Court held that the State may ban lawyers and
doctors from operating under a trade name. See, e.g., Friedman v. Rogers, 440 U.S. 1 (1979).

J. Torts and the First Amendment.

1. Defamation.

--The Court has developed different tests depending on the plaintiffs and subject matter of the suit. There are
four categories of defamation suits:
1) Where the plaintiff is a public official;
Here, the plaintiff must prove actual malice by clear and convincing evidence before she can
succeed in a defamation suitthe New York Times standard.
2) Where the plaintiff is a public figure;
The New York Times standard.
3) Where the plaintiff is a private figure but the matter is of public concern; and
The plaintiffs burden must be at least a preponderance of the evidence and must prove actual
malice before she may receive punitive damagesthe Gertz standard.
4) Where the plaintiff is a private figure and the matter is not of public concern.
Left entirely up to the States discretion, but cannot be strict liabilitythe Dun & Bradstreet
standard.

--New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (Brennan, J.).
Facts: In 1960, the New York Times ran an advertisement in their newspaper appealing for funds to help
support Dr. Martin Luther King, Jr. and the civil rights movement in general. L. B. Sullivana public
official in charge of supervising the Montgomery Police Departmentbrought a libel suit against the
New York Times concerning this advertisement.
The advertisement was 10 paragraphs long and contained allegedly false information. The sections
in contention claimed the police circled civil rights protestors with shotguns and tear-gas and attempted
to starve them into submission. It also claimed that Southern police had bombed Dr. Kings home,
assaulted him, arrested him seven times for minor crimes, and have charged him with perjury. Dr. King
had, however, only been arrested four times and there was no record of an assault on Dr. King.

26
The Court clarified this factor in Board of Trustees of the State University of New York v. Fox (1989). There, the Court made it clear
that Central Hudson does not require the least restrictive means testthe law must only be narrowly tailored achieve the asserted
ends.
27
The test, essentially, is a morphed form of intermediate scrutiny. The law must be narrowly tailored to further a substantial
government interest.

28
 In order to prove the publication was libelous per se, Alabama law required the prosecution to
show that the words published would tend to injure a personin his reputation or to bring [him] into
public contempt. Sullivan was subsequently awarded $500,000 in damages by Alabama courts. The
Times appealed arguing these libel laws violated the First and Fourteenth Amendments.
Issue: Whether Alabamas rule of liabilitywhich does not require malicious intentviolates the First
Amendment, with regard to public officials.
Ruling/Rationale: Yes. A State cannot, under the First and Fourteenth Amendments, award damages to
a public official for defamatory falsehood relating to his official conduct unless he proves actual
malicethat the statement was made with knowledge of its falsity or with reckless disregard of
whether it was true or false. Factual error, content defamatory of official reputation, or both, are
insufficient to warrant an award of damages for false statements unless actual maliceknowledge that
statements are false or in reckless disregard of the truthis alleged and proved.
--The case must be decided on the background of a profound national commitment 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 government and public officials.
Accordingly, this kind of speech is afforded the highest protection under the First Amendment. The
question becomes, however, whether that protection is forfeited due to the falsity of some of its
information. The answer is no. It is recognized that erroneous statement is inevitable in free debate,
and that it must be protected if the freedoms of expression are to have the breathing space that they
needto survive.
--The negligence per se rule out of Alabama only required the plaintiff to show that the words published
would tend to injure his reputation. Therefore, if the alleged words injured a public officials reputation,
the high burden of proof falls upon the defendant to show the veracity of his statement(s). This could
clearly deter people from voicing their opinions on public officialsa sentiment the First Amendment
cannot allow.
In short, for a public official to succeed in a libel suit, he must prove actual malicei.e., the
defendant knowingly published false statements or published those statements with reckless
disregard for the truthby clear and convincing evidence.

--Gertz v. Welch, 418 U.S. 323 (1974) (per Powell, J.).

Facts: In 1968, a Chicago police officer, Richard Nuccio, shot and killed Robert Nelson. Subsequently,
Nelsons family obtained a lawyer, Elmer Gertz, to pursue legal action against Nuccio. The State
ultimately found Nuccio guilty of second-degree murder. After the conviction, an article in The
American Opinion, published by the John Birch Society, claimed that the prosecution was part of a
Communist campaign against the police. The article also called Gertz a Leninist and a Communist-
fronter. The article contained many inaccuracies. Gertz then sued the publishers, alleging defamation.
Issue: Whether a newspaper/publisher has the same constitutional protection against libel suits coming
from private, rather than public actors.
Ruling/Rationale: No. A publisher or broadcaster of defamatory falsehoods about an individual who is
neither a public official nor a public figure may not claim the New York Times protection against
liability for defamation on the ground that the defamatory statements concern an issue of public or
general interest. Under New York Times v. Sullivan, the standard required public officials to show
actual malice. The standards for public officials, however, are not necessarily the same for private
citizens. So long as they do not impose liability without fault, the States may define for themselves the
appropriate standard of liability for a publisher or broadcaster of defamatory falsehood. The States,
however, may not permit recovery of presumed or punitive damages when liability is not based on
knowledge of falsity or reckless disregard for the truth [actual malice], and the private defamation
plaintiff who establishes liability under a less demanding standard than the New York Times test may
recover compensation only for actual injury.

29
 In short, the States may determine what standard governs defamation suits between the press
and private citizens; however, the plaintiff must prove actual malice before she may receive
punitive damages.
A public figure, moreover, is someone who voluntarily thrust[ed] himself into the limelight.

--Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985) (per Powell, J.).
Facts: Dun & Bradstreet, Inc. is a credit-reporting agency, which provides subscribers with financial
information about businesses. In 1976, Dun & Bradstreet sent a report to five subscribers indicating that
Greenmoss Builders, Inc. had voluntarily filed for bankruptcy. The report was false and grossly
misinterpreted Greenmoss assets. After determining the report was inaccurate, Dun & Bradstreet
issued a corrective notice approximately one week later. Unhappy with the new notice, Greenmoss filed
a defamatory suit in Vermont State court.
Issue: Whether the Gertz standard should apply between private litigants when the case is not a matter
of public concern.
Ruling/Rationale: No. A plurality opinion, but all five concurring Justices held that Gertz does not
apply. Permitting recovery of presumed and punitive damages in defamation cases absent a showing
of actual malice does not violate the First Amendment when the defamatory statements do not involve
matters of public concern.
Defamation suits between two private citizens is left entirely up to the States discretion; and the
1st Amendment does not require the plaintiff to prove actual malice when awarding punitive
damages.

2. Intentional infliction of emotional distress.

--Public figures must satisfy the New York Times standard before they can recover damages for intentional
infliction of emotional distress. Hustler v. Falwell, 485 U.S. 46 (1988).

--Hustler Magazine v. Falwell, 485 U.S. 46 (1988) (per Rehnquist, C.J.).

Facts: In the 1980s, Campari Liqueur ran a series of first time ads. The ads started with a tagline that
read [insert celebrity] talks about their first time. The viewer was meant to think the ad was talking
about the celebritys first time having sex; but by the end of the ad, it was clear that they were talking
about the first time they tried Campari Liqueur.
In an edition of Hustler Magazine, Larry Flynt parodied these ads by making a fake first time ad
by making a Jerry Falwell talks about his first time ad. The ad depicted Jerry Falwell having sex
with his mother in an outhouse and giving his sermons drunk. Falwell sued, alleging libel, invasion of
privacy, and intentional infliction of emotional distress. The trial court found in favor of Flynt on the
counts of libel and invasion of privacy, but found in favor of Falwell for intentional infliction of
emotional distress. Flynt appealed.
Issue: Whether public figures can recover damages for intentional infliction of emotional distress
caused by a parody.
Ruling/Rationale: No. We conclude that public figures and public officials may not recover for the tort
of intentional infliction of emotional distress by reason of publications such as the one herewithout
showing in addition that the publication contains a false statement of fact which was made with actual
malice This is not merely a blind application of the New York Times standard, it reflects our
considered judgment that such a standard is necessary to give adequate breathing space to the
freedoms protected by the First Amendment.
In other words, public figures must prove actual malice before they may recover for intentional
infliction of emotional distress.
Here, because no reasonable person could believe this ad was truthful, Falwell cannot prove
actual malice.
30
--Snyder v. Phelps, 62 U.S. 443 (2011) (per Roberts, C.J.).
Facts: The Westboro Baptist Church is a small church run by Fred Phelps and his family in Topeka,
Kansas. The church members believe the United States is overly tolerant of sin and that God kills
American soldiers as punishment. To express their views, members of the church protest soldiers
funerals, bearing signs that read, Thank God for 9/11, Thank God for dead soldiers, God Hates
Fags, etc.
In 2006, Matthew Snyder was killed while serving in Iraq. The Westboro members decided to travel
to Maryland to protest his funeral. The church informed the authorities of their intent to picket and
complied with the requests of the policethey were 1,000 feet away from the funeral in a designated
public area. Snyders father saw the tops of the signs from the funeral precession and discovered the
contents of the signs later that day. Snyder then sued the Westboro Baptist Church, winning around
$11 million in damages at trial. The church appealed.
Issue: Whether the First Amendment shields speakers from tort liability, even if their speech was
outrageous.
Ruling/Rationale: Yes. This speechconcerning the political and moral conduct of the United States
and homosexuality in the militaryis clearly of public import. In addition, this speech was delivered in
a traditional public foruma sidewalk. This speech, therefore, is given the highest form of protection.
Even though this speech was vey hurtful, we as a nation have chosen to protect even hurtful speech on
public issues to ensure that we do not stifle public debate. Westboro, therefore, cannot be held liable.
The Court also further defines when speech addresses something of public concern
Speech deals with matters of public concern when it can be fairly considered as relating to any
matter of political, social, or other concern to the community, or when it is a subject of
legitimate news interest; that is, a subject of general interest and of value and concern to the
public.

3. Invasion of privacy.

--A private cause of action exists for invasion of privacy when someone discloses (1) private facts (2) to the
public (3) that is not of legitimate concern to the public (4) that a reasonable person would find offensive.
Restatement (Second) of Torts 652(D) (1977). Unlike libel, this tort extends the publication of true
information. The Supreme Court, however, has held that the 1st Amendment prevents liability for invasion of
privacy if the information was lawfully obtained from public records and was truthfully reported. Cox
Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975).

K. Expressive conduct.

--The Court will go through several steps when evaluating expressive conduct. First, the Court must determine
whether the conduct is actually expressive. To answer this, the Court will use the Spence test: (1) the speech
must be intended to convey a particular message; and (2) the message would likely be received by the viewers.
Spence v. Washington, 418 U.S. 405 (1974). Next, the Court will ask whether the States regulation is related to
the suppression of free speech. See Texas v. Johnson, 491 U.S. 397 (1989). If the law is unrelated to the
expression of speech, the Court will use the (lenient) OBrien test. If the law is related to the expression of
speech, the Court will use strict scrutiny.

--United States v. OBrien, 391 U.S. 367 (1968) (per Warren, C.J.).
Facts: In 1948, Congress passed the Universal Military Training and Service Act; and in 1965, Congress
amended the Act to make knowingly destroying or knowingly mutilating your draft card a criminal
offense. In 1966, OBrien and three others burned their Selective Service certificates (draft cards) on the
steps of the South Boston Courthouse. OBrien was subsequently tried and convicted under this Act.

31
 Issue: Whether the burning of a draft card is constitutionally protected under the First Amendment as
symbolic speech.
Ruling/Rationale: No. Symbolic speech is protected under the First Amendment, but it is not without
limits. This Court has held that when speech and nonspeech elements are combined in the same
course of conduct, a sufficiently important governmental interest in regulating the nonspeech element
can justify incidental limitations on First Amendment freedoms.
--A governmental regulation is sufficiently justified if it is within the constitutional power of the
Government and furthers an important or substantial governmental interest unrelated to the suppression
of free expression, and if the incidental restriction on alleged First Amendment freedom is no greater
than is essential to that interest. The 1965 Amendment meets all these requirements.
Developed the OBrien test. The law must: (1) be within Congress power to enact; (2) further
an important or substantial governmental interest; (3) be unrelated to the suppression of free
expression (content-neutral); and (4) prohibit no more speech than is necessary (narrowly
tailored).
The 1965 Amendment came within Congress broad and sweeping power to raise and
support armies and make all laws necessary to that end.
The 1965 Amendment is a narrow and precisely drawn provision which specifically
protects the Governments substantial interest in an efficient and easily administered
system for raising armies.

--Texas v. Johnson, 491 U.S. 397 (1989) (per Brennan, J.).

Facts: During the 1984 Republican National Convention, Gregory Lee Johnson participated in a political
demonstration to protest the policies of the Reagan Administration and some Dallas-based corporations.
At the end of the demonstration, Johnson burned an American flag on the steps of Dallas City Hall. No
one was physically injured or threatened during this demonstration. Johnson, however, was
subsequently tried and convicted under a Texas State law for burning the American flag. Johnson
argued his conviction was inconsistent with the 1st Amendment.
Issue: Whether the 1st Amendment protects the burning of the American flag.
Ruling/Rationale: Yes. We do no consecrate the flag by punishing its desecration, for in doing so we
dilute the freedom that this cherished emblem represents.
--Under the circumstances, Johnsons burning of the flag constituted expressive conduct, permitting
him to invoke the First Amendment. The State conceded that the conduct was expressive. Occurring as
it did at the end of a demonstration coinciding with the Republican National Convention, the expressive,
overtly political nature of the conduct was both intentional and overwhelmingly apparent.
--Texas gives two interests this anti-flag burning law is meant to further: (1) preventing breaches of the
peace; (2) preserving the flag as a symbol of nationhood and national unity. The government generally
has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word. It
may not, however, proscribe particular conduct because it has expressive elements. [A]lthough we have
recognized that, where speech and nonspeech elements are combined in the same course of conduct,
a sufficiently important governmental interest in regulating the nonspeech element can justify incidental
limitations on First Amendment freedoms, we have limited the applicability of OBriens relatively
lenient standard to those cases in which the governmental interest is unrelated to the suppression of free
expression. United States v. OBrien (1968). The Court rejects the States first argument, leaving
only the national unity argument. Since the second interest is directly related to restricting free
expression, the OBrien test does not apply. This law must be reviewed under the Brandenburg test, a
most exacting scrutiny.
--Expression may not be prohibited on the basis that an audience that takes serious offense to the
expression may disturb the peace, since the Government cannot assume that every expression of a
provocative idea will incite a riot, but must look to the actual circumstances surrounding the

32
 expression.28
See also United States v. Eichman, 496 U.S. 310 (1990) (striking down the federal Flag
Protection Act of 1989).

1. Money as speech.

--Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam).

Facts: The Federal Election Campaign Act (FECA) of 1971 was amended in 1974 which: (a) limits
political contributions to candidates for federal elective office by an individual or a group; (b) limits
expenditures by individuals or groups relative to a clearly identified candidate; (c) requires political
committees to keep detailed records of contributions and expenditures, including the name and address
of each individual contributing in excess of $10, and his occupation and principal place of business if his
contribution exceeds $100; (d) creates the eight-member Commission (FEC) as the administering
agency with recordkeeping, disclosure, and investigatory functions and extensive rulemaking,
adjudicatory, and enforcement powers.
Issue: Whether any or all of the four provisions of FECA are unconstitutional.
Ruling/Rationale: Yes and No. [T]he Court addressed various challenges to the Federal Election
Campaign Act of 1971 (FECA) as amended in 1974. These amendments created 18 U.S.C. 608(e)
(1970 ed., Supp. V), see 88 Stat. 1265, an independent expenditure ban separate from 610 that applied
to individuals as well as corporations and labor unions, Buckley, 424 U.S. at 23, 39, and n. 45.
Before addressing the constitutionality of 608(e)s independent expenditure ban, Buckley first
upheld 608(b), FECAs limits on direct contributions to candidates. The Buckley Court recognized a
sufficiently important governmental interest in the prevention of corruption and the appearance of
corruption. Id. at 25; see id. at 26. This followed from the Courts concern that large contributions
could be given to secure a political quid pro quo. Ibid.
The Buckley Court explained that the potential for quid pro quo corruption distinguished direct
contributions to candidates from independent expenditures. The Court emphasized that the
independent expenditure ceilingfails to serve any substantial governmental interest in stemming the
reality or appearance of corruption in the electoral process, id. at 4748, because [t]he absence of
prearrangement and coordinationalleviates the danger that expenditures will be given as a quid pro
quo for improper commitments from the candidate, id. at 47. Buckley invalidated 608(e)s restrictions
on independent expenditures, with only one Justice dissenting. See Federal Election Commn v.
National Conservative Political Action Comm., 470 U.S. 480, 491, n. 3 (1985) (NCPAC).29

--Randall v. Sorrell, 548 U.S. 230 (2006) (per Breyer, J.).

Facts: Vermonts campaign finance laws limited both (a) the amounts candidates for state office may
spend on their campaigns (candidate expenditure limitation) and (b) the amounts that individuals,
organizations, and political parties may contribute to those campaigns (contribution limitation).
Issue: (1) Whether a State may set limits on candidate expenditures.
(2) Whether a State may set contribution ceilings upon individuals.
Ruling/Rationale: (1) No. Buckley makes clear that the expenditure limits violate the First
Amendment.
(2) Yes, but not here. The contribution limits are unconstitutional because in their specific details
(involving low maximum levels and other restrictions) they fail to satisfy the First Amendments
requirement of careful tailoring.

--Citizens United v. FEC, 558 U.S. 310 (2010) (per Kennedy, J.).

28
Shows how Blacks dissent in Feiner has carried the daywe dont allow the hecklers veto in our 1st Amendment jurisprudence.
29
Taken from Citizens United v. FEC, 558 U.S. 310, 345 (2010).
33
 Facts: In 2002, Congress passed the Bipartisan Campaign Reform Act (commonly called the BCRA or
McCain-Feingold). The Actas defined in McConnell v. FEC (2003)sought to accomplish two
primary objectives: (1) to decrease the role and amount of soft money being spent on political
campaigns, and (2) to hinder the proliferation of issue advocacy ads by defining any ads that name a
federal candidate within 30 days of a primary or caucus or 60 days of a general election as
electioneering communications, and prohibiting any such ad paid for by a corporation or paid for by
an unincorporated entity using any corporate or union general treasury funds. Furthermore, in 1990, the
Court upheld electioneering communication limits such as these in Austin v. Michigan Chamber of
Commerce which held the government had an interest in preventing corporations from obtaining an
unfair advantage in the political marketplace by using resources amassed in the economic
marketplace.
In 2008, Citizens Unitesa conservative non-profit organizationreleased a documentary entitled
Hillary: The Movie, which was critical of then-presidential-candidate Hillary Clinton. Concerned about
possible civil and criminal penalties for violating the BCRA, Citizens United sought declaratory and
injunctive relief, arguing that the limitations set up by the BCRA were unconstitutional under the First
Amendment.
Issue: Whether a statute that prohibits corporations or unions from spending money to support or
denounce individual candidates in elections is unconstitutional.
Ruling/Rationale: Yes. Campaign financing is a more of political speech and is therefore subject to First
Amendment protectionsexpressly overturns Austin and part of McConnell. Section 441(b), therefore,
is an outright prohibition on political speech and is accordingly subject to strict scrutiny. The
governments interests are: (1) that corporate political speech can be banned to prevent corruption or the
appearance of corruption, and (2) to protect shareholders from being compelled to fund corporate
speech. Neither of these, the Court finds, are compellingthe government fails strict scrutiny.
--Interest (1) fails because, independent expenditures, including those made by corporations, do not
give rise to corruption or the appearance of corruption. That speakers may have influence over or access
to elected officials does not mean that those officials are corrupt. And the appearance of influence or
access will not cause the electorate to lose faith in this democracy. Interest (2) fails because [t]he
statute is underinclusive; it only protects a dissenting shareholders interests in certain media for 30 or
60 days before an election when such interests would be implicated in any media at any time. It is also
overinclusive because it covers all corporations, including those with one shareholder.
--The disclaimer and disclosure provisions of the BCRA are not unconstitutional. The government
presents a valid interest in transparency. Also, the requirement of disclosure is such a minimal intrusion
that the First Amendment can allow it.

L. Forums for speech.

--Early on, the Supreme Court rejected any claim of right to use public property for speech purposes. Davis v.
Massachusetts, 167 U.S. 43 (1897). The post-1937 Court, however, rejected the Davis rationale. See, e.g.,
Hague v. Committee for Industrial Org., 307 U.S. 496, 51516 (1939) (per Roberts, J.) (Wherever the title of
streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of
mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing
public questions. The privilege of a citizen of the United States to use the streets and parks for
communication of views on national questions may be regulated in the interest of all; it is not absolute, but
relative, and must be exercised in subordination to the general comfort and convenience, and in consonance
with peace and good order; but it must not, in the guise of regulation, be abridged or denied.); Schneider v.
New Jersey, 308 U.S. 147 (1939). The Hague and Schneider decisions stand for the proposition that the
government may not ban speech in places that have time out of mind been used for communicating ideas; it
may, however, place reasonable time, place, and manner restrictions upon people to further the public safety,
health, [and] welfare. Cf. id.

34
 Contemporary decisions have divided government property in different categories, each having its own
speech-related test. See, e.g., Christian Legal Society v. Martinez, 561 U.S. 661, 679 n.11 (2010); Perry v.
Perry Local, 460 U.S. 37, 4547 (1983).
(a) Traditional public forumsplaces that have time out of mind been used as places to communicate to
the public.
The government can regulate speech in a traditional public forum only if:
(1) the regulation is content-neutralif the law is not content-neutral, it must run the
gamut of strict scrutiny, Chicago v. Mosley (1972);
(2) it is a reasonable time, place, and manner restriction that passes intermediate scrutiny
(leaving adequate alternatives open), Hill v. Colorado (2000); and
(3) the licensing or permit system meets intermediate scrutiny (leaves little discretion to
the licensing board and has adequate procedural safeguards), Ward v. Rock Against
Racism (1989).
(b) Designated public forumsexist when government property that has not traditionally been regarded as
a public forum is opened up for that purpose.
Subject to the same strict scrutiny as a traditional public forum.
(c) Limited (nonpublic) forumsgovernmental entities establish limited public forums by opening
property limited to use by certain groups or dedicated solely to the discussion of certain subjects.
Here, the government may pass all laws that are reasonable and viewpoint-neutral. Christian
Legal Society v. Martinez, 561 U.S. 661 (2010).

1. Traditional public forums.

--Police Dept of the City of Chicago v. Mosley, 408 U.S. 92 (1972) (per Marshall, J.).
Facts: The City of Chicago had an ordinance that generally prohibited picketing outside a school. The
ordinance, however, exempted peaceful labor picketing from its prohibition. Earl Mosley was charged
under this ordinance for carrying a sign outside a high school that read, Jones High School practices
black discrimination. Jones high school has a black quota.
Issue: Whether a law that allows picketing about one subject, to the exclusion of all others, violates the
1st and 14th Amendments.
Ruling/Rationale: Yes. The government may not grant the use of a forum to people whose views it
finds acceptable, but deny use to those wishing to express less favored or more controversial views.
The government has no power to regulate speech or expression based upon its content. To allow
otherwise would undercut the profound national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide-open.
But see Frisby v. Schultz, 487 U.S. 474 (1988) (upholding a statute that banned picketing near
any private residence because the law was content-neutral and served the governmental interest
of ensuring tranquility in the home); Burson v. Freeman, 504 U.S. 191 (1992) (upholding a
content-based ordinance that banned the distribution of campaign literature within 100 feet of a
polling place because the ordinance survived strict scrutiny).

--Hill v. Colorado, 530 U.S. 703 (2000) (per Stevens, J.).

Facts: In 1993, Colorado enacted a statute that made it unlawful for any person to knowingly approach
within eight feet of another person for the purpose of passing [out] a leaflet or handbillor [to]
enagag[e] in oral protestwith such other person within 100 feet of a healthcare facility.
Issue: Whether the statute is a reasonable time, place, and manner restriction on speech.
Ruling/Rationale: Yes. The Colorado Supreme Court ruledand the U.S. Supreme Court agreedthat
this law was content-neutral. The Court further held that this restriction was a reasonable time, place,
and manner restriction. The law does not affect the speakers ability to convey her message or the
viewers ability to receive the message; it only restricts the speaker from knowingly approaching the
35
 viewer as she walks into the hospital. This furthers the governments interest in protecting vulnerable
hospital patients. The law, moreover, is narrowly tailored to further this interest: its only eight feet; its
only in front of hospitals; and it has a mens rea requirement. The law, therefore, stands.
Scalia, J., dissenting: This law may be facially valid; but when you look underneath the law, it is
a content-based restriction of sidewalk counseling, which should be met with the most
exacting scrutiny.30
See also McCullen v. Coakley, 573 U.S. ___ (2014) (striking down Massachusetts 35-foot
buffer zone around healthcare facilities). It blinks reality to say, as the majority does, that a
blanket prohibition on the use of streets and sidewalks where speech on only one politically
controversial topic is likely to occurand where that speech can most effectively be
communicatedis not content based. Id. (Scalia, J., concurring/dissenting).

--Ward v. Rock Against Racism, 491 U.S. 781 (1989) (per Kennedy, J.).
Facts: Central Park contains an amphitheater called the Naumberg Acoustic Bandshell. New York
enforced a policy that required speakers/musicians at the Bandshell to use state-owned amplifiers and a
state-employed technicians. The City did this to control noise levels in Central Park West and the quiet
areas in the Park. Musicians, planning to host a concert at the Bandshell, challenged the policy.
Issue: Whether a law that restricts the volume of speech violates the 1st Amendment.
Ruling/Rationale: No. This policy is content-neutralit does not discriminate on subject matter or
viewpointit should, therefore, be viewed through the lens of intermediate scrutiny. The government
has important interests in keeping Central Park quiet and preventing unwanted sound from entering the
homes of those who live near the amphitheater. New Yorks policy is sufficiently tailored to further
these interestsit allows the government to control the volume of the speech. Accordingly, this is
reasonable time, place, or manner restriction that is sufficiently tailored. The law stands.
This case also stands for the proposition that the 1st Amendment does not require the least
restrictive means test.

2. Designated public forums.

--[D]esignated public forums [exist] when government property that has not traditionally been regarded as a
public forum is intentionally opened up for that purpose Christian Legal Society, 561 U.S. 661, 679 n.11
(2010). For example, universities are generally thought to be limited public forums. However, if the university
opens its property to certain groups, it may not discriminate based on content.
In Widmar v. Vincent, 454 U.S. 263 (1981), for example, the Court ruled that a university that allowed student
organizations to use its buildings could not preclude religious groups from using the same buildings. Laws
restricting speech in designated public forums are subject to the same strict scrutiny as traditional public
forums.

3. Nonpublic (limited) forums.

Christian Legal Society of the U. of Cal. Hastings College of Law v. Martinez, 561 U.S. 661 (2010).
Facts: The U. of Cal. Hastings had a rule that required student-run organizations to open their
membership to all students before it could receive university funds. Hastings Christian Legal Society
(CLS) applied to be a registered student organization but was denied because it denied admission to
atheists and homosexuals. The CLS appealed.
Issue: Whether a university is traditional or designated public forum.
Ruling/Rationale: No. Universities are limited public forums. Accordingly, university restrictions on
speech need only be reasonable in time, place, and manner and viewpoint-neutral. Hastings meets that

30
This is Scalia looking to the purpose of the law rather than the text.
36
 standard. The Christian Legal Society enjoys no constitutional right to state subvention of its
selectivity. In other words, the State is required to not discriminate. Here, the CLS is asking the
government to condone their discrimination. The CLS has no 1st Amendment right to make such a
request.

--International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) (per Rehnquist, C.J.).
Facts: The Port Authority of New York and New Jersey, a government entity created by Congress, owns
and operates the three main airports in the greater New York City areaJFK Intl, LaGuardia, and
Newark Airport. The International Society for Krishna Consciousness, Inc. (ISKCON), or the Hare
Krishnas, was performing a religious ritual known as the sankirtan at these airports. The sankirtan
consists of going into public places, disseminating religious literature and soliciting funds to support
the religion. They were conducting the ritual in the terminal areas. The Port Authority, however,
had adopted a regulation forbidding the repetitive solicitation of money or distribution of literature
within the terminals, but not the sidewalks outside the terminals.
Issue: (1) Which category of public forums does an airport terminal belong to?
(2) Whether the Port Authoritys suppression of speech within their airport terminals violated the First
Amendment.
Ruling/Rationale: (1) Nonpublic. Airport terminals have only very recently achieved their large size and
character. They, therefore, could not be thought of as an immemoriallytime out of mind area of
public discourse; and only in recent years have non-profit organizations been using these areas for
distribution of literature, etc. Accordingly, this cannot be thought of as a traditional public forum.
--The airport terminals are not designated public forums either. In order for a public forum to be
designated or limited, it must be made by intentionally opening a nontraditional forum for public
discourse. This has not been done by the Port Authority. The airport terminals generally have not
been intentionally opened by their operators for such activity. Therefore, since the terminal is not
traditional or designated, they are nonpublic (or limited). Under this category the restrictions need only
be reasonable; it need not be the most reasonable or the only reasonable limitation.
(2) No. Airport congestion is a reasonable problem for the Port Authority to remedy; banning solicitors
is a reasonable means to that endnot unconstitutional.
See also United States v. Kokinda, 497 U.S. 720 (1990) (finding the sidewalk outside a post
office to be a nonpublic forum). Lee and Kokinda show the conservative Courts are more likely
to narrow what they mean by a forume.g., a sidewalk outside a post office rather than just
sidewalks.

M. Speech in schools.

--While students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse
gate, Tinker v. Des Moines, 393 U.S. 503 (1969), the constitutional rights of students in public schools are not
automatically coextensive with the rights of adults in other settings, Bethel v. Fraser, 478 U.S. 675 (1986). A
students constitutional rights must be applied in light of the special characteristics of the school
environment. Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988). As such, school officials may enforce content-
based restrictions upon students so long as it furthers a legitimate pedagogical purpose. Id. In other words, the
Court largely views schools as limited public forums.

--Tinker v. Des Moines Indep. Comm. School Dist., 393 U.S. 503 (1969) (per Fortas, J.).
Facts: In 1965, several students (including Mary Beth Tinker) made plans to wear black armbands with
peace signs to show their opposition to the Vietnam War. The school principals became aware of the
plan and adopted a policy forbidding the armbandsany student caught wearing one would be asked to
take it off, and, if they refused, they would be suspended until they returned without the armband.
Despite the policy, the students wore the armbands to school and were suspended; they did not return to

37
 school for over two weeks. The students sought injunctive relief against such policies, arguing they
violate students First Amendment rights.
Issue: Whether the schools prohibition against wearing symbolic armbands violated the students First
and Fourteenth Amendment rights.
Ruling/Rationale: Yes. First Amendment rights, applied in light of the special characteristics of the
school environment, are available to teachers and students. It can hardly be argued that either students
or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.
--A prohibition against expression of opinion, without any evidence that the rule is necessary to avoid
substantial interference with school discipline or the rights of others, is not permissible under the First
and Fourteenth Amendments.
In order for the Stateto justify prohibition of a particular expression of opinion, it must be able to
show that its action was caused by something more than a mere desire to avoid the discomfort and
unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and
no showing that engaging in the forbidden conduct would materially and substantially interfere with the
requirements of appropriate discipline in the operation of the school, the prohibition cannot be
sustained.31
--It is also relevant that the school authorities did not purport to prohibit the wearing of all symbols of
political or controversial significance. The order [only extended to] a particular symbolblack
armbands worn to exhibit opposition to this Nations involvement in Vietnam Clearly, the prohibition
of expression of one particular opinion, at least without evidence that it is necessary to avoid material
and substantial interference with schoolwork or discipline, is not constitutionally permissible.
In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not
possess absolute authority over their students. Students in school, as well as out of school, are persons
under our Constitution.

--Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) (per Burger, C.J.).
Facts: In 1983, Matthew Fraser, a student at Bethel High School, gave a speech in support of a candidate
for student body vice president. The speech was full of a sexual innuendos:

I know a man who is firmhes firm in his pants, hes firm in his shirt, his character is firmbut
mostof all, his belief in you, the students of Bethel, is firm. Jeff Kuhlman is a man who takes his
point and pounds it in. If necessary, hell take an issue and nail it to the wall. He doesnt attack things
in spurtshe drives hard, pushing and pushing until finallyhe succeeds. Jeff is a man who will go
to the very endeven the climax, for each and every one of you. So vote for Jeff for A.S.B. vice-
presidenthell never come between you and the best our high school can be.

After Fraser gave this speech, the Principal suspended him for 3 days, relying on a school rule
forbidding obscene language in the school. Fraser, relying primarily on the Tinker decision, appealed
his punishment.
Issue: Whether a high school can punish lewd speech.
Ruling/Rationale: Yes. Schools are more than educational institutions. The school is the primary place
where our values are inculcated. The teachers, and older students, must lead by example. Accordingly,
a schools faculty has wide latitude in punishing speech that undermine[s] the schools basic
educational mission. Unlike Tinker, this speech was lewd and offensive and the punishment was
viewpoint-neutral.
Brennan, J., concurring: I agree that schools should be afforded wide latitude when punishing
lewd or indecent speech. This speech, however, is not that: Having read the full text of
[Frasers] remarks, I find it difficult to believe that it is the same speech the Court describes.
Marshall, J., dissenting: Tinker stands for the proposition that unless it is necessary to avoid
31
Does the material and substantial interfere[nce] test allow for the hecklers veto? Or does the school have a duty to take
reasonable steps to uphold the students right to speak? Feiner v. New York, 340 U.S. 315 (1951) (Black, J., dissenting).
38
 material and substantial interference with schoolwork or discipline, a school may not censor
speech. Here, the school failed to bring any evidence show that school was disrupted by Frasers
speech. Thus, I see no reason to reverse the lower courts holdings.

--Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988) (per White, J.).
Facts: In 1983, several Journalism II students at Hazelwood High School wrote two stories for the
Spectrum, their high school newspaper. One of the stories concerned how three other students were
dealing with teen pregnancy; the other dealt with how divorce had affected several other students. The
high school principal, however, objected to these stories. He believed the stories contained
inappropriate talk about birth control and might offend some of the divorced parents. In response, the
principal removed the two stories from the final published version of the Spectrum. The students sued,
alleging that the school had violated their 1st Amendment rights.
Issue: Whether a school newspaper is a forum for public expression.
Ruling/Rationale: No. [W]e hold that educators do not offend the First Amendment by exercising
editorial control over the style and content of student speech in school-sponsored expressive activities so
long as their actions are reasonably related to legitimate pedagogical concerns.32
Brennan, J., dissenting: The students did not act in any way that would disrupt a schools
pedagogical purpose. The principal, however, did. This was a journalism class. What was the
school trying to teach the students in this class? I doubt it was that a state official can shred your
newspaper articles if he finds them objectionable (i.e., prior restraint). Such unthinking
contempt for individual rights is intolerable from any state official. It is particularly insidious
from one whom the public entrusts the task of inculcating in its youth an appreciation for the
cherished democratic liberties that our Constitution guarantees. The young men and women of
Hazelwood East expected a civics lesson, but not the one the Court teaches them today.

--Morse v. Frederick, 551 U.S. 393 (2007) (per Roberts, C.J.).

Facts: In January 2002, the Olympic Torch was passing through Juneau, Alaska. A Juneau High School,
while school was in session, Principal Deborah Morse decided to allow students and faculty to watch the
Torch Relay. As the Torch and media approached, Joseph Frederick and several other students unveiled
a 14-foot sign that read: BONG HiTS 4 JESUS. Principal Morse immediately approached Frederick
and ordered him to take down the sign. He refused. Morse then confiscated the banner and suspended
Frederick for 10 days. Frederick appealed his suspension, but the Superintendent upheld Fredericks
punishment because he believed the school could punish speech that reasonably promoted illegal drug
use.
Issue: Whether a schools faculty may punish off-campus speech based on its viewpoint.
Ruling/Rationale: Yes. [W]e hold that schools may take steps to safeguard those entrusted to their care
from speech that can reasonably be regarded as encouraging illegal drug use. The Court used the
standard concerning school-sponsored events.
Stevens, J., dissenting: The majoritys holding rests upon two propositions: (1) students do not
have equal free speech rights in school that they would have in a traditional public forum; and
(2) the State has an importantperhaps compellinginterest in deterring illegal drug use. But
it is a gross non sequitur to draw from these two unremarkable propositions the remarkable
conclusion that the school may suppress student speech that was never meant to persuade anyone
to do anything.
--In my judgment, the First Amendment protects student speech if the message itself neither
violates a permissible rule nor expressly advocates conduct that is illegal and harmful to

32
In other words, school faculty can engage in content-based regulations so long as they are reasonable in time, place, and manner.
School-sponsored events, accordingly, look at lot like nonpublic (limited) forums subject to Rehnquists rational basis test. Justice
White gives several examples of what a school may censor: speech that is, for example, ungrammatical, poorly written, inadequately
researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences.
39
 students.

N. The freedom of association.

--Before a person can be punished for group membership, the State must show: (1) the group advocates and acts
unlawfully; (2) the member was aware of the groups illegality; and (3) the member had the specific intent to
further that illegality. Scales v. United States, 367 U.S. 203 (1961); Noto v. United States, 367 U.S. 290 (1961).
--Additionally, there are two kinds of associations: (1) intimate associations and (2) expressive associations. An
intimate association is distinguished because of its smallness, selectivity, and seclusion. The government
can never act within this realm.
An expressive association, on the other hand, is a larger, less selective group. The only time the government
can interfere with this sort of group is when it has a compelling interest and does not change the expressive
mission of the group.

1. The foundation.

--NAACP v. Alabama, 357 U.S. 449 (1958) (per Harlan, J.).

Facts: In the 1950s, Alabama had a law that required out-of-state corporations to register with the state
before conducting business in Alabama. The NAACP, a corporation based out of New York, had not
abided by this law, because it thought it was exempt. Alabamas Attorney General sued the NAACP in
an effort to drive it out of the state. During discovery, the state issued a subpoena requiring the NAACP
to turn over the names and addresses of all its Alabama members. The NAACP refused and was fined
$10,000.
Issue: Whether the government can require an association to disclose its members.
Ruling/Rationale: No. We hold that the immunity from state scrutiny of membership listsisso
related to the right of the members to pursue their lawfulinterests privately and to associate freely with
othersas to come within the protection of the Fourteenth Amendment. If the state could require a
disclosure of membership, it could dissuade others from joining out of fear of economic reprisal, loss
of employment, threat[s] of physical coercion, and other manifestations of public hostility. With this in
mind, state action which may have the effect of curtailing the freedom to associate is subject to the
closest scrutiny.

2. Compelled association.

--Board of Regents of the Univ. of Wisconsin v. Southworth, 529 U.S. 217 (2000) (per Kennedy, J.).
Facts: The University Wisconsin charges its students a mandatory student activity fee to support
student organizations. In 1995, several students challenged this fee, arguing that it went toward political
and ideological student groups. The Wisconsin courts struck down the Universitys mandatory fee,
holding that it violated the First Amendment as interpreted in Abood and Keller.33
Issue: Whether a university can extract a viewpoint-neutral fee to further its educational mission.
Ruling/Rationale: Yes. Abood and Keller limited a unions ability to spend its required fees to speech
germane to the purposes of the unioni.e., collective bargaining. There is no particular speech that is
germane to a university. Universities seek[] to facilitate a wide range of speech.
--The University must, however, provide some protection to its students 1st Amendment rights. This
protection is sufficiently served when the university remains viewpoint-neutral in allocating the funds.

33
In Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977), the Court held that nonmembers could be required to make payments to a
teachers union to avoid free riders. But in Keller v. State Bar of California, 496 U.S. 1 (1990), the Court held that unions cannot
spend that money on issues unrelated to their activities (e.g., a steelworkers union could not spend mandatory payment money to
advocate for gun control). But see Harris v. Quinn, 134 S. Ct. 2618 (2014) (refusing to apply Abood to quasi-public employees and
questioning the Courts free rider rationale).
40
 3. Does an association have the right to discriminate?

--Roberts v. United States Jaycees, 468 U.S. 609 (1984) (per Brennan, J.).
Facts: The United States Jaycees was a non-profit membership corporationconsisted of about 300,000
peoplewhose objective was to foster the growth and development of young mens civic organizations
in the United States Regular, voting membership was limited to men between the age of 18 and 35;
and associate, non-voting membership was available to women and older men. In 1978, several female
members of the St. Paul Jaycees filed suit, arguing that their inability to vote violated the Minnesota
Human Rights Act, which provided that it was an unfair discriminatory practice [t]o deny any person
the full and equalprivileges, advantages, [or] accommodationsbecause of [their]sex. The
Jaycees argued that this law would infringe upon their associational rights.
Issue: Whether the government can forbid an association from restricting membership based on race,
age, or sex.
Ruling/Rationale: Yes. There are two types of association: (1) intimate association and (2) expressive
association. An intimate association is distinguished because of its smallness, selectivity, and
seclusion. The government can never act within this realm.
An expressive association, on the other hand, is a larger, less selective group. The only time the
government can interfere with this sort of group is when it has a compelling interest and does not change
the expressive mission of the group.
--For example, the government could not force a local book club to allow Rhonda34 to jointhis would
be an impermissible regulation on an intimate association. On the other hand, the government can
forbid a large for-profit company from denying employment because of the applicants sexthis would
be a permissible regulation on an expressive association. However, the government could not require
the NAACP to admit a white supremacistthis would interfere with the groups expressive mission.

--Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (per Rehnquist, C.J.).
Facts: The Boy Scouts of America revoked James Dales membership when they found out he was gay,
despite the fact that Dale was an Eagle Scout and loved the Scouts. New Jersey had a public
accommodations law similar to the law in United States Jaycees. Dale sued the Scouts under this law;
the Scouts argued this law violated their 1st Amendment associational rights.
Issue: Whether the Boy Scouts can exclude gay people from its organization.
Ruling/Rationale: Yes. The Boy Scouts is an expressive associationthe general mission of the Boy
Scouts is clear: [T]o instill values in young people. They seek to bring up children to be morally
straight and clean. The Scouts have been involved in litigation showing that they have a desire to
not promote homosexual conduct as a legitimate form of behavior. Accordingly, the government
cannot require this group to admit homosexuals because it would significantly affect its expression.
Stevens, J., dissenting: How would allowing homosexuals to join the Boy Scouts significantly
affect its expression? No one, including the Boy Scouts, would describe its expressive activity
as anti-gay. The Boy Scouts is an organization that that seeks to serve others by helping to
instill values in young people andto prepare them to make ethical choices over their
lifetime How would admitting a gay scoutmaster undermine this objective?

34
Fuck Rhonda.
41
 IV. The Religion Clauses.

A. What is religion?

--United States v. Seeger, 380 U.S. 163 (1965) (per Clark, J.).
Facts: The Universal Military Training and Service Act allows people to opt out of combatant training
and service if they are conscientiously opposed to participation in war in any form because of their
religion. The Act further defines religion as an individuals belief in a relation to a Supreme
Being but did not include essentially political, sociological, or philosophical views, or a merely
personal moral code. Daniel Seeger was convicted for refusing to submit to the draft during the Korean
War. He claimed to be a conscientious objector to war but not because of his belief in a Supreme
Being. He then challenged the definition of religion under the UMTSA.
Issue: Whether religion, within the meaning of the UMTSA, requires a belief in God.
Ruling/Rationale: No. Weconclude[] that Congress, in using the expression Supreme Being rather
thanGod, was merely clarifying the meaning of religious training and belief so as to embrace all
religions and to exclude essentially political, sociological, and philosophical views. Under this view,
the test ought to be whether a given belief that is sincere and meaningful occupies a place in the life of
its possessor parallel to that filled by the orthodox belief in God for clearly religious people.

--United States v. Ballard, 322 U.S. 78 (1944) (per Douglas, J.).

Facts: The Ballards were convicted of using the mail to perpetuate a fraud and acquire money under
false pretenses. The Ballards sent out mailers that claimed they had supernatural ways to cure the sick.
It was clear that the Ballards believed this because of their religion. Accordingly, the jury was tasked
with determining whether the Ballards religious beliefs were true or false.
Issue: Whether the 1st Amendment allows a jury to determine the veracity of a religious doctrine.
Ruling/Rationale: No. [W]e do not [believe] that the truth or verity of [the Ballards] religious doctrines
or beliefs should have been submitted to the jury. [T]he First Amendment precludes such a course

B. The Free Exercise Clause.

1. Generally applicable laws & the Religious Freedom and Restoration Act (RFRA).

i. The Sherbert test.

--Sherbert v. Verner, 374 U.S. 398 (1963) (per Brennan, J.).

Facts: Adell Sherbert was a member of the Seventh-Day Adventist Church. As part of her religion, she
was not allowed to work on Saturdays, the Sabbath. Because she refused to work on Saturdays, she was
fired from her job. She then filed for unemployment with the State. The State denied her claim, finding
that she had been fired for good cause. Sherbert challenged the States finding, arguing it violated the
1st Amendment.
Issue: Whether laws of general applicability that burden religion are facially valid under the 1st
Amendment.
Ruling/Rationale: No. Before a law that burdens religion can be upheld one of the following must be
shown: (1) the law doesnt impose a burden upon the plaintiffs religion; or (2) the government has a
compelling state interest and there is no alternative forms of regulation. Here, Sherberts religion
has been burdenedshe must choose between working and practicing her religion. The government,
moreover, has not carried its burden to meet the second prong.
Harlan, J., dissenting: Sherbert was fired for doing something that anyone could have been fired
forfailing to show up to work. Her religious beliefs had nothing to do with her firing. She
should not be given special treatment.
42
--Wisconsin v. Yoder, 406 U.S. 205 (1972) (per Burger, C.J.).
Facts: Wisconsin had a statute that required all children to attend school at least until they turn 16-years-
old. Several Amish families, however, pulled their children out of school after 8th grade, citing their
religious beliefs. The State filed criminal charges against the families and fined them $5 each. The
families appealed.
Issue: Whether this generally applicable law passes the Sherbert test.
Ruling/Rationale: No. This law substantially burdens the families religious beliefs: Wisconsin law
affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds
withtheir religious beliefs And while the State may have a compelling interest in furthering its
populations education, this law is not the least restrictive means to further that interest: The Amish are a
largely self-sufficient people; the lack of two additional years of compulsory education will not
impair the physical or mental health of the [children], or result in an inabilityto discharge the duties
and responsibilities of citizenship, ormaterially detract from the welfare of society. This law,
therefore, must remain inapplicable to the Yoders.

ii. The current test.

--Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 875 (1990) (per Scalia, J.).
Facts: Oregon prohibits the use or possession of peyotea Schedule I hallucinogen. Alfred Smith was
fired from his job at a drug rehabilitation center for using peyote as part of a Native American religious
ceremony. After his firing, Smith applied for unemployment with the State but was denied because he
had been fired for misconduct. Smith challenged his unemployment denial, relying on Sherbert.
Issue: Whether a generally applicable lawhere, a law prohibiting the use of peyoteis facially valid
under the 1st Amendment.
Ruling/Rationale: Yes. The Sherbert test is outmoded and has only been applied by this Court in the
context of unemployment benefits. Even if we were inclined to breathe into Sherbert some life
beyondunemployment compensationwe would not apply it to require exemptions from a generally
applicable criminal law. To make an individuals obligation to obey [a criminal law] contingent upon
the laws coincidence with religious beliefscontradicts both constitutional tradition and common
sense. This would allow the defendant to become a law unto himself.
--To hold otherwise could open up the floodgates to ridiculous exceptions to valid laws: What if a
religion doesnt believe in paying taxes? What if a religion doesnt believe in a states child abuse/labor
laws? What if a religion believes in animal sacrifice? The 1st Amendment allows you to believe this;
but it does not allow you be free from criminal sanctions when you act upon these beliefs.
OConnor, J., concurring in the judgment of the Court only: Apply Sherbert The government
has a compelling interest in prohibiting drug use, and the law will only work if it is generally
applicable this passes Sherbert.
Blackmun, J., dissenting: Apply Sherbert the State does not have a compelling interest in
prohibiting drug use within this carefully circumscribed religious context this fails Sherbert.

iii. The Religious Freedom Restoration Act (RFRA).

--Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___ (2014) (per Alito, J.).
Facts: In 1993, Congress passed the Religious Freedom Restoration Act (RFRA), which prohibits the
Government [from] substantially burden[ing] a persons exercise of religion even if the burden results
from a rule of general applicability unless the Government demonstrates that application of the burden
to the person(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive
means of furthering that compelling governmental interest.

43
 In 2010, Congress passed the Affordable Care Act (ACA). This law required, inter alia, specified
employers group health plans to furnish preventive care and screenings for women without any cost
sharing requirements, which would be determined by the Health Resources and Services
Administrationa branch of the Department of Health and Human Services. The HHS determined that
certain forms of contraceptionthat stopped an already fertilized egg from developing any further by
inhibiting its attachment to the uteruswere covered under the ACA. Hobby Lobby, Inc., along with
several other businesses, argued that the ACA violated their religious freedom under RFRA and sought
injunctive relief.
Issue: (1) Whether the Religious Freedom Restoration Act applies to closely-held corporations; and, if
so,
(2) Whether the Affordable Care Act meets the strict scrutiny requirements of the RFRA.
Ruling/Rationale: (1) Yes. The Dictionary Act, 1 U.S.C. 1, defines person to include
corporationsas well as individuals. RFRA was passed to protect people with closely held religious
beliefs; it would not make sense to interpret RFRA to require religious persons to choose between
practicing their religion or forming a corporation.
(2) No. As applied to closely held corporations, the HHS regulations imposing the contraceptive
mandate violate the RFRA.
--HHSs contraceptive mandate substantially burdens the exercise of religionit requires Hobby Lobby
to engage in conduct that seriously violates their sincere religious belief that life begins at conception. If
they and their companies refuse to provide contraceptive coverage, they face severe economic
consequencesabout $475 million per year for Hobby Lobby.35
--The Court assumes (but does not decide) that the interest in guaranteeing cost-free access to the four
challenged contraceptive methods is a compelling governmental interest. But the Government has failed
to show that the contraceptive mandate is the least restrictive means of furthering that interest. The
Government could assume the cost of providing the four contraceptives to women unable to obtain
coverage due to their employers religious objections. Or it could extend the accommodation that HHS
has already established for religious non-profit organizations to for-profit employers with religious
objections to the contraceptive mandate.
See also Zubik v. Burwell, 578 U.S. ___ (2016) (remanding the issue of whether submitting a
form requesting contraceptive coverage violates RFRA).

C. The Establishment Clause.

--The primary test used to determine whether the Establishment Clause has been violated is the Lemon test: (1)
the statute must have a secular legislative purpose; (2) its principal or primary effect must be one that neither
advances nor inhibits religion; and (3) the statute must not foster an excessive government entanglement
with religion.
Prong 1: When the government acts with the ostensible and predominant purpose of advancing
religion, it violates the central Establishment Clause value of official religious neutrality. McCreary
County v. ACLU of Kentucky, 545 U.S. 844 (2005).
Prong 2: In Estate of Thornton v. Caldor, 472 U.S. 703 (1985), the Court invalidated a law that
provided that no person could be required to work on their Sabbath because the statute went beyond
having an incidental or remote effect of advancing religion; rather, it ha[d] a primary effect that
impermissibly advancesreligio[n]
Prong 3: The State is entangled in religion when it practices comprehensive, discriminating, and

35
Amici briefs argued in this case that the $2,000 per-employee penalty is actually less than the average cost of providing health
insuranceand therefore, they claim, the companies could readily eliminate any substantial burden by forcing their employees to
obtain insurance in the government exchanges. This is a great argument; however, the Court dismissed this argument because they
do not generally entertain arguments that were not raised below and are not advanced in this Court by any partyand there [were]
strong reasons to adhere to that practice in these cases.
44
 continuing state surveillance. Lemon v. Kurtzman, 403 U.S. 602 (1971); compare Grand Rapids v.
Ball, 473 U.S. 373 (1985) (holding that the State cannot pay parochial teachers salaries because the
State would need to monitor whether the teachers were teaching only secular materials), with Agostini v.
Felton, 521 U.S. 203 (1997) (allowing public school teachers to teach secular subjects at parochial
schools because it would not requires the type of monitoring seen in Grand Rapids).

1. The Lemon test.

--Lemon v. Kurtzman, 403 U.S. 602 (1971) (per Burger, C.J.).

Facts: Pennsylvania and Rhode Island each had laws that gave state money to church-related educational
institutions. Pennsylvania gave subsidies to private schools by paying teachers salaries and school
supplies in certain secular subjects. Rhode Island gave private school teachers a supplement of 15% of
their annual salary. Both laws were challenged under the Establishment Clause.
Issue: Whether a law that gives financial aid to religiously based institutions violates the Establishment
Clause.
Ruling/Rationale: Yes. The Establishment Clause was implemented to prohibit sponsorship, financial
support, and active involvement of the sovereign in religious activities. If a law appears to tread upon
this forbidden ground, it must pass a three-part test before it will be upheld: (1) the statute must have a
secular legislative purpose; (2) its principal or primary effect must be one that neither advances nor
inhibits religion; and (3) the statute must not foster an excessive government entanglement with
religion. Here, there is no reason to believe the state legislatures acted with a non-secular purpose
their goal was to enhance the quality of their private school systems. However, the statutes in question
foster an impermissible degree of entanglement.

2. Religious displays on government property.

--County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573 (1989) (per Blackmun, J.).
Facts: This case concerns two of Pittsburghs religious displays: (1) a nativity scene placed on the grand
staircase to the county courthouse; and (2) a menorah placed outside City Hall, next to a Christmas tree
and a sign saluting liberty. The ACLU challenged these displays, and the Third Circuit held that both
impermissibly endorsed religion.
Issue: (1) Whether a government-displayed nativity scenestanding aloneviolates the Establishment
Clause.
(2) Whether a government-displayed menorahstanding next to other religious symbolsviolates the
Establishment Clause.
Ruling/Rationale: (1) Yes. The primary test to determine whether a religious display violates the
Establishment Clause is to determine whether the government has endorsed religion. In making this
determination, we must ask whether the challenged governmental action is sufficiently likely to be
perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as
a disapproval, of their individual religious choices.36 Here, the crche stands alone: it is the single
element of the display on the Grand Staircase. This is enough to show that a reasonable person would
view the display as a government endorsement of religion.
(2) No. Unlike the crche, the menorah is placed next to a Christmas tree and other decorations, thereby
giving the display an overall holiday setting. This combination is enough to show that the government
was merely recognizing the secular holiday season, not endorsing both Judaism and Christianity.
[T]he Establishment Clausemean[s] that government may not promote or affiliate itself with
any religious doctrine or organization, may not discriminate among persons on the basis of their
religious beliefs and practices, may not delegate a governmental power to a religious institution,
36
Elsewhere in the opinion, Justice Blackmun notes that endorsement is synonymous with favoritism or promotion. He also
notes that this test heavily depends upon its context. The main source of precedent used by the Court was Lynch v. Donnelly.
45
 and may not involve itself too deeply in such an institutions affairs.
OConnor, J., concurring: In my view, the relevant question for Establishment Clause purposes
is whether the city of Pittsburghs display of the menorah, the religious symbol of a religious
symbol of a religious symbol of a religious holiday, next to a Christmas treesends a message
of pluralism and freedom to choose ones own belief.
Stevens, J., concurring/dissenting: In my opinion the Establishment Clause should be construed
to create a strong presumption against the display of religious symbols on public property. There
is always a risk that such symbols will offend nonmembers of the faith being advertised as well
as adherents who consider the particular advertisement disrespectful.
Kennedy, J., concurring/dissenting: Rather then requiring government to avoid any action that
acknowledges or aids religion, the Establishment Clause permits government some latitude in
recognizing and accommodating the central role religion plays in our society.

--McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005) (per Souter, J.).
Facts: In 1999, two Kentucky counties erected monuments to the Ten Commandments inside their
county courthouses. After several complaints were filed, the counties expanded the monument to show
that the Commandments were Kentuckys precedent legal code.
Issue: Whether a government display of the Ten Commandmentsstanding aloneviolates the
Establishment Clause.
Rationale: Yes. We hold that the counties manifest objective may be dispositive of the constitutional
enquiry, and that the development of the presentation should be considered when determining its
purpose. The touchstone of Establishment Clause analysis is neutrality. The government violates
this principle when it acts with the ostensible and predominant purpose of advancing religion The
Ten Commandments, moreover, are an instrument of religion that presumptively is understood as
meant to advance religion. And the history behind the erection of this display shows that it had no
legitimate secular purpose. This is sufficient to show that the display violates the Establishment Clause.

--Van Orden v. Perry, 545 U.S. 677 (2005) (per Rehnquist, C.J.).
Facts: The Texas State Capitol is surrounded by 22 acres containing 17 monuments and 21 historical
markers commemorating the people, ideals, and events that compose Texan identity. Among those
displays was a 6 x 3 tablet containing the Ten Commandments.
Issue: Whether a government display of the Ten Commandmentsin an area with other secular
displaysviolates the Establishment Clause.
Rationale: No. We cannot say that Texas display of this monument violates the Establishment Clause
of the First Amendment. The Lemon test is inapplicable here. Rather, the Court should look to the
nature of the monument and by our Nations history. Rehnquist then rolled out a laundry list of quasi-
religious displays in D.C. So, while the state cannot display the Ten Commandments in school
classrooms, Stone v. Graham (1980), the monument here is far more passivethanwhere the text
confronted elementary school students every day.

46
 V. Equal Protection.

--When a law is challenged under the Equal Protection Clause, the Court is essentially always posed with the
same question: Whether the governments classification is justified by a sufficient purpose. To be more
specific, the Court must answer three questions: (1) What is the classification? (2) What level of scrutiny should
apply to this classification? and (3) Does the governments action meet the level of scrutiny?
What is the classification? The government can discriminate in two ways: (1) where the law is facially
discriminatory, see, e.g., Strauder v. W. Virginia, 100 U.S. 303 (1879) (blacks cannot serve on juries);
and (2) where the law is facially neutral but has a discriminatory impact and was passed with a
discriminatory purpose, see, e.g., Washington v. Davis, 426 U.S. 229 (1976).
What is the appropriate level of scrutiny? The vast majority of cases will be gauged under the rational
basis test.37 The Court, however, has noted that if a class of people meets certain criteria, it may
warrant heightened scrutiny. Those criteria are (1) whether the class is being classified by their
immutable characteristicse.g., race, national origin, or gender;38 (2) whether the group is unable to
protects itself through the political processe.g., women and aliens;39 (3) whether there is a history of
discrimination against the groupbecause a history of discrimination increases the likelihood that the
law was motivated by prejudice;40 and (4) whether the groups characteristics affect their ability to
contribute to society.41 If a class meets these criteria, it may be given the imprimatur of suspect or
quasi-suspect class. Laws affecting a suspect class will be subject to strict scrutiny, and laws
affecting a quasi-suspect class will be subject to intermediate scrutiny.
Does the governments action meet the level of scrutiny? The Court will look to how the governments
means furthers its ends. This necessarily requires the Court to look at the laws overbreadth and
underinclusiveness. Rational basis allows a tremendous amount of overbreadth and underinclusiveness.
Any form of heightened scrutiny, however, requires much more substantial tailoring.
--The Court often invokes the Equal Protection Clause when dealing with fundamental rights. This is due, in
large part, to the Courts reluctance to use substantive due process.42

A. Rational basis review.

--The rational basis is often comically easy to pass. The law can be substantially overbroad and underinclusive.
The burden lies with the claimant to show that the challenged law bears no rational relationship between any
legitimate state interest. Some scholars argue, however, that the test has more bite when the Court is dealing
with certain subjects. See, e.g., Romer v. Evans, 517 U.S. 620 (1996); Cleburne v. Cleburne Living Center, 473
U.S. 432 (1985).

--Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949) (per Douglas, J.).
Facts: New York Traffic Code 124 forbade the operation of any advertisements on a vehicle on the
streets of New Yorkarguably in order to prevent distraction from other drivers and pedestrians.
Appellant owned a nationwide express business, which operated approx. 1,900 trucks in New York City

37
The governments law must be rationally related to a legitimate state interest.
38
See, e.g., Fullilove v. Klutznick, 448 U.S. 448, 496 (1980).
39
See, e.g., Graham v. Richardson, 403 U.S. 365, 367 (1971).
40
See, e.g., Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985) ([W]hen a statute classifies by race, alienage, or national
origin[,] [t]hese factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such
considerations are deemed to reflect prejudice and antipathy For these reasons, and because such discrimination is unlikely to be
soon rectified by legislative means, these laws are subjected to strict scrutiny, and will be sustained only if they are suitably tailored to
serve a compelling state interest.).
41
Id.
42
See, e.g., Skinner v. Oklahoma, 316 U.S. 535 (1942); Reynolds v. Sims, 377 U.S. 533 (1964); Shapiro v. Thompson, 394 U.S. 618
(1969).
47
 and sold space of the trucks for advertisements. He was subsequently charged and fined under this
ordinance.
Issue: (1) Whether the regulation violates the 14th Amendments Due Process Clause.
(2) Whether a regulation which prohibits general advertisements on vehicles, while allowing
advertisements of products sold by the vehicle owner violates the 14th Amendments Equal Protection
Clause.
Ruling/Rationale: (1) No. The function of this Court upon such review is not to weigh evidence on the
due process issue in order to determine whether the regulation is sound or appropriate, nor to pass
judgment on the wisdom of the regulation. The providence and duty of the Court is to say what the
law is, not what it should be.
(2) No. This Court cannot say that the advertising, which is forbidden, has less incidence on traffic than
that which is exempted.43 The regulation is not rendered invalid by the fact that it does not extend to
what may be even greater distractions affecting traffic safety, such as the spectacular displays at Times
Square. Not the Courts place to pass judgment on the wisdom or prudence of a law; that is a
legislative matter. There is no equal protection requirement of statutes to eradicate all evils of the
same kind or eradicate none of the evils at all.

--Romer v. Evans, 517 U.S. 620 (1996) (per Kennedy, J.).

Facts: The cities of Aspen, Boulder, and Denver had passed laws that sought to protected people who
were discriminated against on the basis of their sexual orientation. Subsequently, Colorado, through a
referendum, amended its State Constitution to provide that no public body in Colorado may adopt or
enforce any law that would give protected status to anyone with homosexual, lesbian, or bisexual
orientation. Several aggrieved homosexuals and Colorado municipalities filed suit to enjoin the
Amendment on the grounds that it violated the Fourteenth Amendment Equal Protection Clause.
Issue: Whether Colorados Amendment 2 violates the Fourteenth Amendment Equal Protection
Clause.
Ruling/Rationale: Yes. Yes. Its sheer breadth is so discontinuous with the reasons offered for it that the
amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational
relationship to legitimate state interests.
--In order to reconcile the Fourteenth Amendment's promise that no person shall be denied equal
protectionthe Court has stated that it will uphold a law that neither burdens a fundamental right nor
targets a suspect class so long as the legislative classification bears a rational relation to some
independent and legitimate legislative end. Amendment 2 fails, indeed defies, even this conventional
inquiry. First, the amendment is at once too narrow and too broad, identifying persons by a single trait
and then denying them the possibility of protection across the board. This disqualification of a class of
persons from the right to obtain specific protection from the law is unprecedented and is itself a denial of
equal protection in the most literal sense. Second, the sheer breadth of Amendment 2, which makes a
general announcement that gays and lesbians shall not have any particular protections from the law, is so
far removed from the reasons offered for it44that the amendment cannot be explained by reference to
those reasons; the amendment raises the inevitable inference that it is born of animosity toward the class
that it affects. Amendment 2 cannot be said to be directed to an identifiable legitimate purpose or
discrete objective. It is a status-based classification of persons undertaken for its own sake, something
the Equal Protection Clause does not permit. The entire purpose of this amendment is to deny to
homosexuals equal protection of the law. Therefore, how could the Equal Protection Clause ever be
thought to allow thiseven under a rational basis review?

43
The Appellant argued that there is no difference whether he advertised his business on his own truck (which is allowed), or whether
another company did. The Court rejected this argument, saying it is not their place to make those kinds of decisions; they are not
some omniscient branch that could know if that was true or false.
44
Respect for other citizens' freedom of association, particularly landlords or employers who have personal or religious objections to
homosexuality, and the State's interest in conserving resources to fight discrimination against other groups.
48
 --Amendment 2 goes well beyond merely depriving them of special rights. It imposes a broad
disability upon those persons alone, forbidding them, but no others, to seek specific legal protection
from injuries caused by discrimination in a wide range of public and private transactions.

B. Strict scrutiny & suspect classes.

1. Facially discriminatory laws.

--Loving v. Virginia, 388 U.S. 1 (1967) (per Warren, C.J.).

Facts: As of the mid-twentieth century, Virginia was one of sixteen States that prohibited mixed-race
marriages.45 In 1958, two Virginia residentsRichard Loving (a white man) and Mildred Jeter (a black
woman)were married in the District of Columbia. Upon their return to Virginia, they were indicted
with violating Virginias anti-miscegenation laws. The Lovings pleaded guilty to the charges and were
sentenced to one year in jail. The trial judge, however, suspended the sentence for a period of twenty-
five years on condition that the Lovings would leave the state and not return for those twenty-five
years.46 The Lovings relocated to D.C. and challenged the validity of their sentences on Fourteenth
Amendment grounds.
Issue: (1) Whether Virginias anti-miscegenation laws violate the Due Process Clause of the Fourteenth
Amendment.
(2) Whether Virginias anti-miscegenation laws violate the Equal Protection Clause of the Fourteenth
Amendment.
Ruling/Rationale: (1) Yes. There can be no doubt that restricting the freedom to marry solely because
of racial classifications violates the central meaning of the Equal Protection Clause.
--In upholding the constitutionality of these laws in a pervious decision, the Virginia Supreme Court
found the States legitimate purposes were to preserve the racial integrity of its citizens, to prevent
the corruption of blood, to prevent a mongrel breed of citizens, and to prevent the obliteration of
racial pride. These purported state interests are clearly the product of racism and the ill-conceived
theory of White Supremacy.
And while the State is correct in asserting that marriage has traditionally been within the police powers
of the States, those powers are subject to the limits prescribed by the Fourteenth Amendment. In
responding to the requirements of the Fourteenth Amendment, the State argues that its law does not
deprive any citizens of equal protection of the laws because this law applies with full effect to all
racesi.e., a white man and a black man would be punished equally if they entered into a interracial
marriage. This argument is not going to fly. When a state imposes an invidious racial classificationas
it has done hereit faced a very heavy burden of justification for its laws. See, e.g., Korematsu v.
U.S. (1944). There is no overriding purpose of invidious racial discrimination which justifies this
classification.47
(2) Yes. These statutesdeprive the Lovings of liberty without due process of law in violation of the
Due Process Clause of the Fourteenth Amendment.
--The freedom to marry has long been recognized as one of the vital personal rights essential to the
orderly pursuit of happiness by free men. And [u]nder our Constitution, the freedom to marry, or not
to marry, a person of another race resides with the individual and cannot be infringed by the State. In
other words, there is a fundamental right to marry, and once the State intrudes upon this right any of its
laws will be subject to the most rigid scrutiny.

45
Virginias ban was the product of the Racial Integrity Act of 1924.
46
In an opinion, the trial judge stated that: Almighty God created the races white, black, yellow, malay and red, and he placed them
on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he
separated the races shows that he did not intend the races to mix.
47
The way Chief Justice Warren writes this opinion may suggest that, although this law was being subject to something along the
lines of strict scrutiny, it would fail any form of judicial review for failing to state any legitimatepurpose.
49
--Palmore v. Sidoti, 466 U.S. 429 (1984) (per Burger, C.J.).
Facts: Mother and father divorced and the judge awarded custody of their 3-year-old daughter to the
mother. The following year, the father sought to modify the judgment because the mother had begun
cohabiting with a black man, whom she married 2 months later. The trial court ruled in favor of the
father, noting that society, by and large, does not accept the mothers lifestyle choicethe child,
therefore, would be subject to the environmental pressures and social stigmatization that accompanies
her mothers lifestyle. The trial court did not find that either of the parents were in anyway unfit to raise
a child. The appeals court affirmed.
Issue: Whether a state courts reliance on the race of one of the childs guardians when determining
child custody violates the 14th Amendment.
Ruling/Rationale: Yes. To pass constitutional muster, state-imposed racial discrimination must be
justified by a compelling governmental interest and must be necessaryto the accomplishment of
their legitimate purpose. The states interest in granting custody based on the best interests of the child
qualifies as a substantial state interest. The Court, however, cannot hold that the possible injuries that
could be inflicted by societal biases is a sufficient justification for removing a child from her mothers
custody. Private biases may be outside the reach of the law, but the law cannotgive them effect.
--In short, the publics biases (e.g., racism) do not present a legitimate state interest.

i. Segregation.

--Plessy v. Ferguson, 163 U.S. 537 (1896) (per Brown, J.).

Facts: In 1890, Louisiana passed a law which required separate but equal railway carriages for white
and black passengers. After the passage of this law, Homer Plessy, a man who was 1/8 African and 7/8
Caucasian, sat in the white section of a train car. He was then asked by the conductor of the train to
vacate the white car and be seated in in the colored section. After refusing to move, he was forcibly
removed from the train by the police and imprisoned.
Issue: Whether a law which provides for separate but equal segregation persons based on their race
violates the 13th or 14th Amendment(s).
Ruling/Rationale: No. The power to segregate is within a states police powers and, therefore, does not
violate the 14th Amendment.
Harlan, J., dissenting: In my opinion, the judgment this day rendered will, in time, prove to be
quite as pernicious as the decision made by this tribunal in the Dred Scott Case. The arbitrary
separation of citizens on the basis of raceis a badge of servitude wholly inconsistent with the
civil freedom and the equality before the law established by the Constitution. It cannot be
justified upon any legal grounds.

--Brown v. Board of Education, 347 U.S. 483 (1954) (per Warren, C.J.).
Facts: Suits had come from several states which imposed the doctrine of separate but equal in their
public school systems. Black students sought, and were denied, admission to white schools based on
their race. The plaintiffs contended that the black schools were not and could not be made equal to
white schools; therefore, the segregation violated their 14th Amendment rights.
Issue: Whether the segregation of children in public schools on the basis of their raceeven if the
physical facilities are equalviolates their 14th Amendment rights.
Ruling/Rationale: Yes. Segregation of white and Negro children in the public schools of a State solely
on the basis of race, pursuant to state laws permitting or requiring such segregation, denies to Negro
children the equal protection of the laws guaranteed by the Fourteenth Amendmenteven though the
physical facilities and other tangible factors of white and Negro schools may be equal.
--The question presented in these cases must be determined not on the basis of conditions existing
when the Fourteenth Amendment was adopted, but in the light of the full development of public
50
 education and its present place in American life throughout the Nation. The doctrine of separate but
equal, as seen in Plessy, has no place in the public school system. Separate educational facilities are
inherently unequal.

2. Facially neutral laws.

--A facially neutral law will not be gauged under strict scrutiny merely because it results in a disproportionate
discriminatory impact; it must also be motivated by a discriminatory purpose. See, e.g., Village of Arlington
Heights v. Metropolitan Housing Development Corp., 429 U.S. (1977); Washington v. Davis, 426 U.S. 229
(1976). More specifically, the law must be passed because of the persons race or gender, not merely in
spite of her race or gender. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 258 (1979).

i. Racially disproportionate impact.

--Yick Wo v. Hopkins, 118 U.S. 356 (1886) (per Matthews, J.).

Facts: An 1880 San Francisco ordinance required owners of wooden laundry houses to gain approval
from a board of supervisors in order to continue their businesses. The owners of the vast majority of
laundry houses in San Francisco were Chinese immigrants because it was the one of the few jobs they
could acquire. The board denied every application made by Chinese immigrants, all of whom had been
in business for over 20 years.48 Yick Wo was arrested and imprisoned for violating the ordinance by
refusing to pay a fine. He then filed for a writ of habeas corpus claiming the ordinance violated his 14th
Amendment rights.
Issue: Whether a facially neutral law that is applied in a discriminatory manner violates the 14th
Amendment.
Ruling/Rationale: Yes. An administration of a municipal ordinance for the carrying on of a lawful
business within the corporate limits violates the provisions of the Constitution of the United States if it
makes arbitrary and unjust discriminations, founded on differences of race between persons otherwise in
similar circumstances.
--A[n] ordinanceviolates the provisions of the Constitution of the United States if it confers upon the
municipal authorities arbitrary power, at their own will, and without regard to discretion in the legal
sense of the term
--The guarantees of protection contained in the Fourteenth Amendment to the Constitution extend to all
persons within the territorial jurisdiction of the United States, without regard to differences of race, of
color, or of nationality.

--Washington v. Davis, 426 U.S. 229 (1976) (per White, J.).

Facts: The District of Columbias Civil Service Commission created a test known as Test 21 for
applicants to D.C. Police Department. Test 21 was used to test verbal ability, vocabulary, reading, and
comprehension. This test, in practice, showed that four times as many blacks failed the tests than
whites. Several black applicants filed sued after failing this test, arguing that its disproportionate racial
impact violated the Due Process Clause of the Fifth Amendment.
Issue: Whether a Federal test, which has a racially disproportionate impact on blacks, violates the Due
Process Clause of the Fifth Amendment.
Ruling/Rationale: No. Though the Due Process Clause of the Fifth Amendment contains an equal
protection component prohibiting the Government from invidious discrimination, it does not follow that
a law or other official act is unconstitutional solely because it has a racially disproportionate impact
regardless of whether it reflects a racially discriminatory purpose. [R]espondentscould no more
ascribe their failure to pass the test to denial of equal protection than could whites who also failed.

48
Prior to the board of supervisors, the board of fire wardens and health officers were in charge of determining the safety of the
businesses.
51
 --The Court of Appeals erred when judging this case on the merits of Griggs v. Duke Power Co. (1971)
and Title VII of the Civil Rights Acts of 196449although respondents would have lost under these tests
too. This is not a disparate impact case because it does not involve the Civil Rights Acts of 1964.
See also McClesky v. Kemp, 481 U.S. 279 (1987) (declining to reverse a death sentence despite
the findings of the Baldus Study); Personnel Administrator of Massachusetts v. Feeney, 442 U.S.
256 (1979) (upholding a law benefiting veterans even though it disproportionately affected
women in a negative way).

--Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. (1977) (per Powell, J.).
Facts: In 1971, Metropolitan Housing Development Corporation (MHDC) applied to the Village of
Arlington Heights, IL, for a rezoning order that would change a 15-acre area from a single-family to a
multi-family classification. MHDC planned to build 190 townhomes for low-to-moderate-income
tenants. Arlington Heights denied the application. MHDC then sued claiming the restrictive zoning
ordinances violated their 14th Amendment rights.
Issue: Whether a zoning ordinance which, in practice, results in a racially disproportionate impact
violates the Fourteenth Amendment.
Ruling/Rationale: No. State action will not be held unconstitutional solely because it results in a racially
disproportionate impact. Washington v. Davis (1976). Legislators make their decisions in light of many
separate interests and considerations. Accordingly, it is very difficult to determine the motive or
dominant purpose for passing a law. For this reason the Court will not review the merits of legislative
decisions absent a showing of arbitrariness or irrationality. When there is proof of a discriminatory
purpose, however, judicial deference is no longer justified. Absent a pattern as stark as that in Yick Wo,
impact alone is not determinative, and the Court must look to other evidence.

ii. Disproportionate gender impact.

--Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979) (per Stewart, J.).
Facts: Massachusetts passed a statute, which gives hiring preference to veterans over non-veterans.
Respondent, who is not a veteran, had passed a number of open competitive civil service examinations
for better jobs over a 12-year period, but was ranked in each instance below male veterans who had
achieved lower test scores than her. Under the statute, all veterans who qualify for state civil service
positions must be considered for appointment ahead of any qualifying nonveterans.
Respondent brought an action in Federal District Court, alleging that the absolute preference formula
established in the Massachusetts statute inevitably operates to exclude women from consideration for the
best state civil service jobs, and thus discriminates against women in violation of the Equal Protection
Clause of the Fourteenth Amendment. The lower courts ruled in favor of respondent. On an earlier
appeal this case was remanded to the lower court to decide this case in light of the precedent set in
Washington v. Davis. The lower court reaffirmed its own judgment saying the results were too
inevitable to be unintentional.
Issue: Whether a lawwhich is neutral on its face but, in practice, adversely affects womenviolates
the Fourteenth Amendment Equal Protection Clause per se.
Ruling/Rationale: No. The process to be used when dealing with a facially neutral law, but is challenged
due to its effects is twofold. It must be determined whether (1) the statutory classification is indeed
neutral, and (2) whether the adverse effect reflects invidious gender discrimination.50 Moreover, when
dealing with gender discrimination, the government must show it has an important interest to be served,
and the law is substantially related to that interest.

49
The standards set by the Civil Rights Acts of 1964 gives far less leeway to employers than does the Constitution. Since this law, on
its face, does not appear to be racially motivated, it would be unfair to institute this more probing judicial review.
50
For this second inquiry, the impact of the law is a good starting point, but purposeful discrimination is the condition that offends the
Constitution.
52
 --Respondent concedes the law passes step 1. The law passes step 2 because the line drawn is not
between men/women; it is between veterans/nonveterans. This law would adversely affect nonveteran
males equally to nonveteran females. Accordingly, there is no proof of invidious gender discrimination.
When the totality of legislative actions establishing and extending the Massachusetts veterans
preference are considered, the law remains what it purports to be: a preference for veterans of either sex
over nonveterans of either sex, not for men over women.

3. Reverse racial discrimination.

--The competing views:

The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.
Parents Involved in Community Schools v. Seattle School District No. 1 (2007) (per Roberts, C.J.).
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. Schuette v. BAMN (2014) (Sotomayor, J., dissenting).

i. Unsure on the standard of review.

--Fullilove v. Klutznick, (1980)In 1977, Congress passed a law requiring 10% of federal funds for local public
works projects to be used to procure services or supplies from businesses owned by minority group members.
Held: This does not violate the 5th or 14th Amendment (since it would be in Congress powers to enact
this legislation under Amend. 14 5, it also falls within Congress spending powers). Intermediate
Scrutiny used.
--Richmond v. J.A. Croson, Co. (1989)In 1983, the city of Richmond, Va., required companies awarded with
city construction contracts to subcontract 30% of their business to minority business enterprises.
Held: This violates the 14th Amendment. Using past discrimination does not justify a racial quota.
Strict Scrutiny used.
--Metro Broadcasting, Inc. v. FCC (1990)Challenged the constitutionality of two minority preference policies
of the FCC. Under the first policy, minority applicants applying for broadcast licenses were given preference if
all other relevant factors were roughly equal. The second policy, known as the distress sale, allowed
broadcasters in danger of losing their licenses to sell their stations to minority buyers before the FCC formally
ruled on the viability of the troubled stations.
Held: These provisions do not violate the 5th Amendment. Intermediate Scrutiny used.

ii. All racial classifications imposed by whatever federal, state, or local governmental actor,
must be analyzed by a reviewing court under strict scrutiny.

--Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (per OConnor, J.).
Facts: In 1989, a division of the United States Department of Transportationthe Central Federal Lands
Highway Division (CFLHD)awarded a prime contract for a highway construction project in Colorado
to a private company: Mountain Gravel & Construction Company. The prime contract contained a
provision that guaranteed Mountain Gravel would receive extra compensation if their subcontractors
were small businesses ran by socially and economically disadvantaged individuals.51 Mountain
Gravel then sought to hire a subcontractor to complete the guardrail portion of the project. Adarand
Constructors and Gonzales Construction Co. each placed bids for the subcontract (Adarands was the
lower of the two). Being that Gonzalez Const. Co. was classified as a business ran by socially and
economically disadvantaged individuals, and Adarand was not, Mountain Gravel hired Gonzalez

51
These businesses are classified as disadvantaged by the Small Business Administration, in part, if they are ran by Black
Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities, or any other individual found to
be disadvantaged
53
 Construction Co. despite Adarands lower bid. Adarand claimed the laws set forth by the Small
Business Administration discriminate on the basis of race in violation of the Fifth Amendment.
Issue: (1) Whether these provisions should be reviewed under the intermediate scrutiny standard as
seen in Fullilove v. Klutznick (1980) and Metro Broadcasting, Inc. v. FCC (1990).
(2) Whether these provisions of the Small Business Act, which encourage contractors to hire
subcontractors on the basis of race, violate the Fifth Amendments Due Process Clause.
Ruling/Rationale: (1) No. Metro Broadcasting is overturned. In Richmond v. J.A. Croson Co. (1989) the
Court held the Fourteenth Amendment requires strict scrutiny of all race-based action by state and local
governments. This standard is now applied to the Federal Government through the Fifth Amendment as
well.
--Through Croson, the Court had established three general propositions with respect to governmental
racial classifications. (1) First, skepticism: Any preference based on racial or ethnic criteria must
necessarily receive a most searching examination, Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 27374
(1986). (2) Second, consistency: [T]he standard of review under the Equal Protection Clause is not
dependent on the race of those burdened or benefited by a particular classification, Croson (1989).
And (3) third, congruence: Equal protection analysis in the Fifth Amendment area is the same as that
under the Fourteenth Amendment,Bolling v. Sharpe, 347 U.S. 497 (1954).
--Taken together, these propositions lead to the conclusion that any person, of whatever race, has the
right to demand that any governmental actor subject to the Constitution justify any racial classification
subjecting that person to unequal treatment under the strictest judicial scrutiny.
(2) Not Answered. Remanded to the lower courts to decide the outcome consistent with this decision.
Stevens, J., dissenting: The Courts concept of consistency assumes that there is no significant
difference between a decision by the majority to impose a special burden on the members of a
minority race and a decision by the majority to provide a benefit to certain members of that
minority notwithstanding its incidental burden on some members of the majority. In my opinion
that assumption is untenable. There is no moral or constitutional equivalence between a policy
that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination.
Invidious discrimination is an engine of oppression, subjugating a disfavored group to enhance
or maintain the power of the majority. Remedial race-based preferences reflect the opposite
impulse: a desire to foster equality in society.
--The consistency that the Court espouses would disregard the difference between a No
Trespassing sign and a welcome mat.
--[A]s the law currently stands, the Court will apply intermediate scrutiny to cases of
invidious gender discrimination and strict scrutiny to cases of invidious race discrimination,
while applying the same standard for benign classifications as for invidious ones. If this remains
the law, then todays lecture about consistency will produce the anomalous result that the
Government can more easily enact affirmative-action programs to remedy discrimination against
women than it can enact affirmative-action programs to remedy discrimination against African
Americanseven though the primary purpose of the Equal Protection Clause was to end
discrimination against the former slaves. When a court becomes preoccupied with abstract
standards, it risks sacrificing common sense at the altar of formal consistency. (emphasis
added).
See also Johnson v. California, 543 U.S. 499 (2005) (using strict scrutiny to gauge a policy of
segregating prisoners based on their race).

iii. The application of the strict scrutiny standard.

--Gratz v. Bollinger, 539 U.S. 244 (2003) (per Rehnquist, C.J.).

Facts: The University of Michigan used a points system when determining whether or not to admit
and undergraduate to their university. It was based on a 150-point scalethe higher the better. A score

54
 between 100150 generally meant acceptance. If an applicant was a member of an underrepresented
racial or ethnic minority group, they were allotted an automatic 20 pointswhile a perfect SAT score
was worth 12 points. Gratz was denied admission into Michigans undergraduate program and
subsequently sued, arguing that Michigans admissions policies violate the 14th Amendment.
Issue: Whether the University of Michigans use of racial preference in admitting undergraduates
violated the Equal Protection Clause of the Fourteenth Amendment.
Ruling/Rationale: Yes. It is by now well established that all racial classifications reviewable under the
Equal Protection Clause must be strictly scrutinized. Adarand Constructors, Inc. v. Pena, 515 U. S.
200, 224 (1995). This standard of reviewis not dependent on the race of those burdened or benefited
by a particular classification. Thus, any person, of whatever race, has the right to demand that any
governmental actor subject to the Constitution justify any racial classification subjecting that person to
unequal treatment under the strictest of judicial scrutiny. Id.
--To withstand our strict scrutiny analysis, respondents must demonstrate that the Universitys use of
race in its current admissions program employs narrowly tailored measures that further compelling
governmental interests. Id. at 227. Because [r]acial classifications are simply too pernicious to
permit any but the most exact connection between justification and classification, Fullilove v.
Klutznick, 448 U. S. 448, 537 (1980) (Stevens, J., dissenting), our review of whether such requirements
have been met must entail a most searching examination. Adarand, supra, at 223.
--We find that the Universitys 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.

--Grutter v. Bollinger, 539 U.S. 306 (2003) (per OConnor, J.).

Facts: Michigan Law School considers diversity in an applicant when they apply to their law school in
a way which, they believed, comported with the precedent set in Bakke. They took into account an
applicants GPA, LSAT, and other common application factors. They also, however, took into account
what they called soft variables. Essentially, these where the factors they believed would further
pursue the compelling State interest seen in Bakke. Grutter was denied admission to Michigan Law and
subsequently sued alleging, inter alia, that their admissions policy used race as a predominant factor and
this, accordingly, violated her 14th Amendment rights.
Issue: Whether Michigan Law Schools use of soft variables in their admissions policy violates the
Fourteenth Amendment.
Ruling/Rationale: No. The Law Schools narrowly tailored use of race in admissions decisions to
further a compelling interest in obtaining the educational benefits that flow from a diverse student body
is not prohibited by the Equal Protection Clause.
--The State must show that this race-conscious admissions policy is narrowly tailored to further a
compelling governmental interest. Compelling state interest? Yes. The Court has long recognized that
ensuring racial diversity is a substantial government interest. See Brown v. Board (1954). Narrowly
tailored? Yes. By using race are merely a plus factor, the school has sufficiently considered
workable race-neutral alternatives.
--The school is allowed to use race as a factor, but not the factor in order to reach its critical mass
necessary to create a diverse student body.
Is the critical mass rationale just a guise for using a quota?

55
C. Gender discrimination.

--Unlike racial classifications, gender classifications must meet intermediate scrutinywhich requires the
government to show an exceedingly persuasive justification for its classification. United States v. Virginia,
518 U.S. 515 (1996). This is likely because there is a reasonable argument that women are better able to protect
themselves through the political process and their gender affects their ability to contribute to society in some
ways. Id. (noting that the [p]hysical differences between men and womenare enduring.).

1. Unsure on the standard of review.

--Frontiero v. Richardson, 411 U.S. 677 (1973) (plurality opinion).

Facts: A married woman Air Force officer (appellant) sought increased benefits for her husband as a
dependent under federal law. The laws providesolely for administrative conveniencethat spouses
of female members are not dependents unless they are in fact, dependent for over one-half of their
support. When her application was denied for failure to satisfy the statutory dependency standard,
appellant and her husband brought this suit claiming these laws violated her due process under the Fifth
Amendment.
Issue: Whether a statute, which has different qualification criteria for women than does men, violates the
Fifth Amendment.
Ruling/Rationale: Yes. The Court held that the statute in question clearly commanded dissimilar
treatment for men and women who are similarly situated, violating the Due Process Clause. The Court
also applied strict scrutiny review to the sex-based classification, the Court found that the governments
interest in administrative convenience could not justify discriminatory practices. The Court held that
statutes that drew lines between the sexes on those grounds alone necessarily involved the very kind of
arbitrary legislative choice forbidden by the Constitution.

2. [C]lassifications by gender must serve important government objectives and must be substantially
related to achievement of those objectives.

--Craig v. Boren, 429 U.S. 190 (1976) (per Brennan, J.).

Facts: An Oklahoma statute allowed for women to drink nonintoxicating (3.2%) beer once they
reached the age of 18, but did not allow for men to drink these beverages until they turned 21.52 Curtis
Craig and a local vendor brought suit challenging the constitutionality of this law.
Issue: Whether a statute, which sets different standards for men and women between the ages of 1820,
violates the Fourteenth Amendment Due Process Clause.
Ruling/Rationale: Yes. To withstand constitutional challenge, previous cases establish that
classifications by gender must serve important government objectives and must be substantially related
to achievement of those objectives. Here, the state has a sufficient interest in enhancing traffic safety
(preventing young men from drinking and driving). This law, however, is not substantially related to
achieving this interest. The only evidence produced by the State shows that men are less than 2% more
likely to be arrested for drinking and driving than women. This is too tenuous a correlation to pass
intermediate scrutiny.
See also United States v. Virginia, 518 U.S. 515 (1996) (striking down VMIs men-only policy
because the State did not present an exceedingly persuasive justification for the exclusion).

52
The State argued that men werent mature enough to drink at 18 and would be more likely to drink and drive.
56
 3. Reverse sex discrimination.

--Mississippi University for Women v. Hogan, 458 U.S. 718 (1982) (per OConnor, J.).
Facts: In 1884, the Mississippi legislature created the Mississippi Industrial Institute and College for the
Education of White Girls of the State of Mississippinow called the Mississippi University for Women
(MUW). From its inception, this school has limited its enrollment to women. In 1971, the school
established a nursing school. Joe Hogan (a man) was a RN, but did not hold a BSN. In 1979, Hogan
applied for admission to MUWs nursing program; he was denied solely on the basis of his sex. The
University would allow him to audit/sit-in on classes, but nothing more. Hogan sued, claiming the
school violated his rights guaranteed by the Fourteenth Amendment.
Issue: Whether a school system may foreclose enrollment to applicants solely on the basis of sex.
Ruling/Rationale: No. [T]he party seeking to uphold a statute that classifies individuals on the basis of
their gender must carry the burden of showing an exceedingly persuasive justification for the
classification. The test must be applied free of fixed notions concerning the roles and abilities of
males and females. Must pass intermediate scrutiny, and be free of gender-based stereotypes.
--The single-sex admissions policy of MUWs School of Nursing cannot be justified on the asserted
ground that it compensates for discrimination against women and, therefore, constitutes educational
affirmative action. A State can evoke a compensatory purpose to justify an otherwise discriminatory
classification only if members of the gender benefited by the classification actually suffer a disadvantage
related to the classification. A State may classify women in a compensatory manner, but that
classification must be shown to actually benefit those women (i.e., be substantially related to an
important government interest). Accordingly, since women have no problem obtaining nursing
degrees53 they should not have to be classified on the basis of their gender.
The State, rather than compensating for discriminatory barriers faced by women, perpetuates the
stereotype that nursing is a profession solely for women. Moreover, since the school allows for males to
audit classes it cant be thought that keeping males out of the classroom is an important governmental
interest.
--The State argues that Title IX 901(a)(5) grandfathered schools that have traditionally allowed only
one-sex admission policies54being that Congress has the power to enforce, by appropriate legislation,
the provisions of the 14th Amendment under 5. The Court held: Congress power under 5 is limited
to adopting measures to enforce the guarantees of the Amendment; 5 grants Congress no power to
restrict, abrogate, or dilute these guarantees. Katzenbach v. Morgan (1966).

D. Alienage.

--As a general rule, laws that classify based on alienage are subject to strict scrutiny. Graham v. Richardson,
403 U.S. 365 (1971). There are, however, three broad exceptions to this rule: (1) laws passed by the federal
government concerning alienage are subject only to rational basis review because Congress has plenary powers
over naturalization and immigration, Mathews v. Diaz, 426 U.S. 67 (1976); see also Art. I, 8, cl. 4; (2)
alienage classifications related to self-governance and the democratic process are only subject to rational basis
review, Ambach v. Norwick, 441 U.S. 68 (1979); and (3) laws targeting undocumented aliens might be subject
to intermediate scrutiny, cf. Plyler v. Doe, 457 U.S. 202 (1982).55
--Additionally, because the federal government completely occupies the field of immigration, state alienage
laws are often challenged on preemption grounds as well. See, e.g., DeCanas v. Bica, 424 U.S. 351 (1976);
Nyquist v. Mauclet, 432 U.S. 1 (1977).

53
94% of all BSNs in Mississippi were obtained by women in 1970one year before MUWs nursing program was founded.
54
901(a)(5) provides an exception to 901(a) for any schools that traditionally and continually from [their] establishment [have]
had a policy of admitting only students of one sex.
55
Plyler is a cryptic decisionit is unclear whether it applies to undocumented immigrants as a class, or whether it is fact-specific.
57
 1. Strict scrutiny as a general rule.

--Graham v. Richardson, 403 U.S. 365 (1971) (per Blackmun, J.).

Facts: Arizona had a statute that read: No person shall be entitled to general assistance who does not
meetthe following requirements: [1] [i]s a citizen of the United States, or [2] has resided in the United
States a total of fifteen years Carmen Richardson was a lawfully admitted resident alien, but had
only been residing in the country for 13 yearsthis was the only reason she was denied government
assistance. She challenged this law on 14th Amendment grounds.
Issue: Whether a law that conditions welfare benefits upon a persons citizenship or time in the country
violates the Equal Protection Clause.
Ruling/Rationale: Yes. [C]lassifications based on alienage, like those based on nationality or race, are
inherently suspect and subject to close judicial scrutiny. Aliens as a class are a prime example of a
discrete and insular minority for whom such heightened judicial solicitude is appropriate. The States
sole interest is to conserve the fisc. However, a concern for fiscal integrity has never been a
compelling interest. Accordingly, this law violates the Equal Protection Clause.
See also In re Griffiths, 413 U.S. 717 (1973) (invalidating a Connecticut law that excluded aliens
from becoming attorneys); Sugarman v. Dougall, 413 U.S. 634 (1973) (striking down a law that
prevented aliens from holding civil service jobs); but see Perkins v. Smith, 426 U.S. 913 (1976)
(upholding a law that prevented aliens from serving on juries).

2. The governmental functions exception.

--Ambach v. Norwick, 441 U.S. 68 (1979) (per Powell, J.).

Facts: A New York State statute forbade the permanent certification of any public school teacher if they
were not U.S. citizens.
Issue: Whether a statute that forbids the employment of schoolteachers on the basis of their citizenship
violates the 14th Amendment.
Ruling/Rationale: No. A New York statute forbidding permanent certification as a public school
teacher of any person who is not a United States citizen unless that person has manifested an intention to
apply for citizenship does not violate the Equal Protection Clause of the Fourteenth Amendment.
--As a general principle, some state functions are so bound up with the operation of the State as a
governmental entity as to permit exclusion from those functions of all persons who have not become
part of the process of self-government. Accordingly, a State is required to justify its exclusion of aliens
from such governmental positions only by a showing of some rational relationship between the interest
sought to be protected and the limiting classification.
--This rule for governmental functions, which is an exception to the stricter general standard applicable
to classifications based on alienage, rests on important principles inherent in the Constitution. The
distinction between citizens and aliens, though ordinarily irrelevant to private activity, is fundamental to
the definition and government of a State, and the references to such distinction in the Constitution itself
indicate that the status of citizenship was meant to have significance in the structure of our government.
It is because of this special significance of citizenship that governmental entities, when exercising the
functions of government, have wider latitude in limiting the participation of noncitizens.
See also Foley v. Connelie, 435 U.S. 291 (1978) (upholding a statute that limited the New Yorks
police force to U.S. citizens because the government had a legitimate interest in confin[ing] the
performance of this important public responsibility to citizens of the United States.).

58
 3. The federal government exception.

--Mathews v. Diaz, 426 U.S. 67 (1976) (per Stevens, J.).

Facts: Congress passed 42 U.S.C. 1395o(2)(b), which denies aliens eligibility to the Medicare
supplemental medical insurance program unless they have been admitted for permanent residence and
also have resided in the United States for at least five years. Diaz filed a class action suit in the District
Court attacking the constitutionality of 1395o(2)(b).
Issue: Whether Congress may make an aliens eligibility for a federal medical insurance program
contingent upon a continuous residence in the U.S. for a five-year period and admission for permanent
residence consistent with the Fifth Amendment.
Ruling/Rationale: Yes. Congresswhich has broad power over immigration and naturalization and
regularly makes rules regarding aliens that would be unacceptable if applied to citizenshas no
constitutional duty to provide all aliens with the welfare benefits provided to citizens; the real question
here is not whether discrimination between aliens and citizens is permissible, as it clearly is, but whether
the statutory discrimination within the class of aliens is permissible. Aliens and citizens do not
necessarily have equal rights under the Constitution. Accordingly, the classifying of aliens and
citizens is not constitutionally suspicious.
--Any rule of constitutional law that would inhibit the flexibility of the political branches of
government to respond to changing world conditions should only be adopted with the greatest caution.
--Fourteenth Amendment and Fifth Amendment issues of alienage are not interchangeable. As far as the
States are concerned, as U.S. citizen of a different state is on equal footing with a citizen of a different
country.
But see Hampton v. Wong, 426 U.S. 88 (1976) (striking down a federal civil service regulation
because it was passed by an administrative agency rather than Congress or the Executive).

4. Undocumented aliens.

--Plyler v. Doe, 457 U.S. 202 (1982) (per Brennan, J.).

Facts: In 1975, the Texas legislature revised its education laws to withhold from local school districts
any State funds for the education of children not legally admitted into the United States. The revision
to the law also allowed local school districts to deny enrollment in their public schools to children not
legally admitted into the country.
Issue: Whether a State may deny illegal alien children the public education it provides for citizens of the
United States.
Ruling/Rationale: No. The Fourteenth Amendment provides that No State shalldeprive any person of
life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws. Regardless of how any alien came to be within a States perimeter, it
could not negate the fact that they are still a person within its jurisdiction. Accordingly, since he is
subject to the full penalty of the laws of the State while he is there, he is entitled to the equal protection
of those lawsuntil he leaves voluntarily or involuntary.
--Normally, laws concerning illegal aliens are analyzed under rational basis review, in accordance with
Ambach v. Norwick (1979). In this case, however, the Court used intermediate scrutinywhich the law
did not pass. In other words, the law is not substantially related to any important governmental interest.
Unique to Plyler.
Texas claimed the law was implemented in order to preserv[e] the state's limited resources for
the education of its lawful residents. While the State might have an interest in mitigating
potentially harsh economic effects from an influx of illegal immigrants, the Texas statute does
not offer an effective method of dealing with the problem. The record does not show that
exclusion of undocumented children is likely to improve the overall quality of education in the
State.
59
E. Classifications based on sexual orientation.

--Romer v. Evans, 517 U.S. 620 (1996) (per Kennedy, J.).

Facts: The cities of Aspen, Boulder, and Denver had passed laws that sought to protected people who
were discriminated against on the basis of their sexual orientation. Subsequently, Colorado, through a
referendum, amended its State Constitution to provide that no public body in Colorado may adopt or
enforce any law that would give protected status to anyone with homosexual, lesbian, or bisexual
orientation. Several aggrieved homosexuals and Colorado municipalities filed suit to enjoin the
Amendment on the grounds that it violated the Fourteenth Amendment Equal Protection Clause.
Issue: Whether Colorados Amendment 2 violates the Fourteenth Amendment Equal Protection
Clause.
Ruling/Rationale: Yes. Its sheer breadth is so discontinuous with the reasons offered for it that the
amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational
relationship to legitimate state interests.
--In order to reconcile the Fourteenth Amendment's promise that no person shall be denied equal
protectionthe Court has stated that it will uphold a law that neither burdens a fundamental right nor
targets a suspect class so long as the legislative classification bears a rational relation to some
independent and legitimate legislative end. Amendment 2 fails, indeed defies, even this conventional
inquiry. First, the amendment is at once too narrow and too broad, identifying persons by a single trait
and then denying them the possibility of protection across the board. This disqualification of a class of
persons from the right to obtain specific protection from the law is unprecedented and is itself a denial of
equal protection in the most literal sense. Second, the sheer breadth of Amendment 2, which makes a
general announcement that gays and lesbians shall not have any particular protections from the law, is so
far removed from the reasons offered for it56that the amendment cannot be explained by reference to
those reasons; the amendment raises the inevitable inference that it is born of animosity toward the class
that it affects. Amendment 2 cannot be said to be directed to an identifiable legitimate purpose or
discrete objective. It is a status-based classification of persons undertaken for its own sake, something
the Equal Protection Clause does not permit. The entire purpose of this amendment is to deny to
homosexuals equal protection of the law. Therefore, how could the Equal Protection Clause ever be
thought to allow thiseven under a rational basis review?
--Amendment 2 goes well beyond merely depriving them of special rights. It imposes a broad
disability upon those persons alone, forbidding them, but no others, to seek specific legal protection
from injuries caused by discrimination in a wide range of public and private transactions.

56
Respect for other citizens freedom of association, particularly landlords or employers who have personal or religious objections to
homosexuality, and the States interest in conserving resources to fight discrimination against other groups.
60
 VI. Fundamental Rights & Substantive Due Process.

--On occasion, the Supreme Court has held that some (unenumerated) rights are so important and self-evident
that they should be deemed fundamental, and any law that restricts these rights must run the gamut of strict
scrutiny. The Court has declared the following rights to be fundamental: (1) family autonomy; 57 (2) sexual
autonomy, i.e., procreation and private sex acts;58 (3) the right to marriage;59 (4) the right to travel;60 (5)
voting;61 (6) medical decision making;62 and (7) access to the courts.

A. The right to marry.

--Loving v. Virginia, 388 U.S. 1 (1967) (per Warren, C.J.).

Facts: As of the mid-twentieth century, Virginia was one of sixteen States that prohibited mixed-race
marriages.63 In 1958, two Virginia residentsRichard Loving (a white man) and Mildred Jeter (a black
woman)were married in the District of Columbia. Upon their return to Virginia, they were indicted
with violating Virginias anti-miscegenation laws. The Lovings pleaded guilty to the charges and were
sentenced to one year in jail. The trial judge, however, suspended the sentence for a period of twenty-
five years on condition that the Lovings would leave the state and not return for those twenty-five
years.64 The Lovings relocated to D.C. and challenged the validity of their sentences on Fourteenth
Amendment grounds.
Issue: (1) Whether Virginias anti-miscegenation laws violate the Due Process Clause of the Fourteenth
Amendment.
(2) Whether Virginias anti-miscegenation laws violate the Equal Protection Clause of the Fourteenth
Amendment.
Ruling/Rationale: (1) Yes. There can be no doubt that restricting the freedom to marry solely because
of racial classifications violates the central meaning of the Equal Protection Clause.
--In upholding the constitutionality of these laws in a pervious decision, the Virginia Supreme Court
found the States legitimate purposes were to preserve the racial integrity of its citizens, to prevent
the corruption of blood, to prevent a mongrel breed of citizens, and to prevent the obliteration of
racial pride. These purported state interests are clearly the product of racism and the ill-conceived
theory of White Supremacy.
And while the State is correct in asserting that marriage has traditionally been within the police powers
of the States, those powers are subject to the limits prescribed by the Fourteenth Amendment. In
responding to the requirements of the Fourteenth Amendment, the State argues that its law does not
deprive any citizens of equal protection of the laws because this law applies with full effect to all

57
Moore v. City of East Cleveland, 431 U.S. 494 (1977) (finding a zoning ordinance that prohibited a grandmother from living with
her grandchild to be unconstitutional). This includes the right to the custody of ones children. See Michael H. v. Gerald D., 491 U.S.
110 (1989).
58
Eisenstadt v. Baird, 405 U.S. 438 (1972) (finding that a law prohibiting distribution of contraceptives to unmarried individuals
violated the 14th Amendment); Skinner v. Oklahoma, 316 U.S. 535 (1942) (finding Oklahomas compulsory sterilization statute
unconstitutional under the Equal Protection Clause).
59
Loving v. Virginia, 388 U.S. 1 (1967); Obergefell v. Hodges, 576 U.S. ___ (2015).
60
Shapiro v. Thompson, 394 U.S. 618 (1969) (holding that residency requirements for receipt of welfare benefits violate the right to
travel under the 14th Amendment).
61
Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966) (holding that poll taxes in state and local elections violate the Equal
Protection Clause of the 14th Amendment). The 24th Amendment makes polls taxes illegal in federal elections.
62
Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990) (finding that competent adults have a 14th Amendment right to
refuse medical treatment); but see Washington v. Glucksberg, 521 U.S. 702 (1997) (refusing to recognize a constitutional right to
assisted suicide).
63
Virginias ban was the product of the Racial Integrity Act of 1924.
64
In an opinion, the trial judge stated that: Almighty God created the races white, black, yellow, malay and red, and he placed them
on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he
separated the races shows that he did not intend the races to mix.
61
 racesi.e., a white man and a black man would be punished equally if they entered into a interracial
marriage. This argument is not going to fly. When a state imposes an invidious racial classificationas
it has done hereit faced a very heavy burden of justification for its laws. See, e.g., Korematsu v.
U.S. (1944). There is no overriding purpose of invidious racial discrimination which justifies this
classification.65
(2) Yes. These statutesdeprive the Lovings of liberty without due process of law in violation of the
Due Process Clause of the Fourteenth Amendment.
--The freedom to marry has long been recognized as one of the vital personal rights essential to the
orderly pursuit of happiness by free men. And [u]nder our Constitution, the freedom to marry, or not
to marry, a person of another race resides with the individual and cannot be infringed by the State. In
other words, there is a fundamental right to marry, and once the State intrudes upon this right any of its
laws will be subject to the most rigid scrutiny.

--Zablocki v. Redhail, 434 U.S. 378 (1978) (per Marshall, J.).

Facts: In the 1970s, the State of Wisconsin had a statute that required any resident who failed to make
child support payments to seek government approval before they would be issued a marriage license.
The statute required the marriage applicant to not be in arrears on his child support payments and the
State had to be confident that the noncustodial child would not become a public charge. If either of
these conditions were not met, the State could deny the applicants marriage license.
In 1974, Roger Redhail was denied a marriage license due to his $3,700 in child payment arrears; and
even if Redhail had made the payments his license application would still have been revoked for fear
that his child would become a public charge.66 After his denial, Redhail challenged the state law on
Fourteenth Amendment grounds.
Issue: Whether a law may condition marriage upon making required child support payments or upon the
assurance that the applicants child will not become a public charge.
Ruling/Rationale: No. To start, since this law is attempting to intrude upon the fundamental right to
marriage, it cannot be upheld unless it is supported by sufficiently important state interests and is
closely tailored to effectuate only those state interests.67 Under this rubric, the state proposes two
governmental interests: (1) the permission-to-marry procedure furnishes the State with an opportunity to
counsel the applicant on the importance of making his required child support payments; and (2) the
welfare of the out-of-custody child(ren) is protected.
These are, no doubt, substantial state interests. The next question, therefore, is whether the
challenged law is sufficiently tailored to further these state interests. The State already has numerous
mechanisms in place for dealing with child welfare and for collecting child support payments that do not
impinge upon fundamental rightse.g., wage assignments, civil contempt proceedings, criminal
penalties, other governmental assistance, etc.
There is also a suggestion that the challenged law helps to ensure child-support payments by
disallowing certain marriage applicants from entering into new support obligations: if this is the case,
then the challenged law is both wholly over- and underinclusive. It is underinclusive since it does not
limit any new financial commitments other than those the applicant would incur from entering into a
marriage. It is overinclusive given the fact that entering into this new marriage could provide the
applicant with a new stream of income from his spouse that would allow him to make his child support
payments. The statutory classificationthus cannot be justified by the interests advanced in support of
it.

65
The way Chief Justice Warren writes this opinion may suggest that, although this law was being subject to something along the
lines of strict scrutiny, it would fail any form of judicial review for failing to state any legitimatepurpose.
66
Mr. Redhail had this child three years prior, out of wedlock, while he was still in high school. When his marriage license was
denied, Redhail was indigent, unemployed, and had paid none of his monthly child payments.
67
Justice Marshall goes into the history of how the Court has lionized marriage in many previous cases (See, e.g., Maynard v. Hill
(1888); Meyer v. Neb. (1923); Skinner v. Oklahoma (1942)); he then goes into the modern interpretation of marriage as a fundamental
right under the Fourteenth Amendment (See, e.g., Griswold v. Connecticut (1965); Loving v. Virginia (1967)).
62
 --The woman whom appellee desired to marry had a fundamental right to seek an abortion of their
expected child or to bring the child into life to suffer the myriad social, if not economic, disabilities that
the status of illegitimacy brings.

--Obergefell v. Hodges, 576 U.S. ___ (2015) (per Kennedy, J.).

Facts: The States of Michigan, Ohio, Tennessee, and Kentucky all defined marriage as that between
one man and one womaneither by statute or constitutional amendmentthereby denying same-sex
couples the ability to marry. Fourteen same-sex couples from these States filed suit alleging these
restrictions violate the Fourteenth Amendment Due Process Clause and Equal Protection Clause.
Issue: (1) Whether the Fourteenth Amendment requires the States to license a marriage between two
people of the same sex.
(2) Whether the Fourteenth Amendment requires a State to recognize a same-sex marriage licensed and
performed in a State which does grant that right.
Ruling/Rationale: (1) Yes. Laws banning same-sex marriage violate both the Due Process and the Equal
Protection Clauses of the Fourteenth Amendment.
--The ancient origins of marriage confirm its centrality, but it has not stood in isolation from
developments in law and society. The history of marriage is one of both continuity and change. Even
for opposite-sex couples, marriage has endured stark changes since its inceptionwomen are no longer
chattel, anti-miscegenation laws are no more, the man is not necessarily the bread winner, etc. These
new insights have strengthened, not weakened, the institution of marriage. [C]hanged understandings
of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new
generations, often through perspectives that begin in pleas or protests and then are considered in the
political sphere and the judicial process.
--[Our] analysis compels the conclusion that same-sex couples may exercise the right to marry. Four
principles guide this analysis: (1) [T]he right to personal choice regarding marriage is inherent in the
concept of individual autonomy. (2) [T]he right to marry is fundamental because it supports a two-
person union unlike any other in its importance to the committed individuals. Marriage responds to
the universal fear that a lonely person might call out only to find no one there. It offers the hope of
companionship and understanding and assurance that while both still live there will be someone to care
for the other. (3) [I]t safeguards children and families and thus draws meaning from related rights of
childrearing, procreation, and education. Excluding same-sex couples from marriage thus conflicts
with a central premise of the right to marry. Without the recognition, stability, and predictability
marriage offers, their children suffer the stigma of knowing their families are somehow lesser. (4)
[T]his Courts cases and the Nations traditions make clear that marriage is a keystone of our social
order. Same-sex couples are consigned to an instability many opposite-sex couples would deem
intolerable in their own lives. As the State itself makes marriage all the more precious by the
significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians
are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a
central institution of the Nations society. Same-sex couples, too, may aspire to the transcendent
purposes of marriage and seek fulfillment in its highest meaning.
The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its
inconsistency with the central meaning of the fundamental right to marry is now manifest. With that
knowledge must come the recognition that laws excluding same-sex couples from the marriage right
impose stigma and injury of the kind prohibited by our basic charter.
--The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth
Amendment is derived, too, from that Amendments guarantee of the equal protection of the laws. The
Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set
forth independent principles. 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 reach of the other. In any particular case one Clause may be thought to capture the

63
essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge
in the identification and definition of the right.
*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. The Court now
holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be
denied to them. Baker v. Nelson must be and now is overruled, and the State laws challenged by
Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil
marriage on the same terms and conditions as opposite-sex couples.
(2) Yes. The Court, in this decision, holds same-sex couples may exercise the fundamental right to
marry in all States. It follows that the Court also must holdand it now does holdthat there is no
lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on
the ground of its same-sex character.
Roberts, C.J., dissenting: This case represents an unfortunate return to the Lochner rationale.
Rather than creating fundamental rights based on this Courts reasoned judgment, [o]ur
precedents have required that implied fundamental rights be objectively, deeply rooted in this
Nations history and tradition, and implicit in the concept of ordered liberty, such that neither
liberty nor justice would exist if they were sacrificed. Glucksberg, 521 U.S. at 72021. The
right to marry someone of the same sex does not meet this standard.
Scalia, J., dissenting: [I]t is not of special importance to me what the law says about marriage.
It is of overwhelming importance, however, who it is that rules me. Todays decree says that my
Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers
on the Supreme Court. The opinion in these cases is the furthest extension in factand the
furthest extension one can even imagineof the Courts claimed power to create liberties that
the Constitution and its Amendments neglect to mention. This practice of constitutional revision
by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of
liberty, robs the People of the most important liberty they asserted in the Declaration of
Independence and won in the Revolution of 1776: the freedom to govern themselves.
This is a naked judicial claim to legislativeindeed, super-legislativepower; a claim
fundamentally at odds with our system of government. Except as limited by a constitutional
prohibition agreed to by the People, the States are free to adopt whatever laws they like, even
those that offend the esteemed Justices reasoned judgment. A system of government that
makes the People subordinate to a committee of nine unelected lawyers does not deserve to be
called a democracy.
My Rationale: The task in every case should be to determine the extent to which
constitutionally guaranteed rights are dependent on interests not mentioned in the
Constitution. As the nexus between the specific constitutional guarantee and the
nonconstitutional interest draws closer, the nonconstitutional interest becomes more
fundamental and the degree of judicial scrutiny applied when the interest is infringed on a
discriminatory basis must be adjusted accordingly. San Antonio Independent School
District v. Rodriguez, 411 U.S. 1, 10203 (1973) (Marshall, J., dissenting).
Moreover, as the Court has recognized, the right to marriage is the most important relation in
life and the foundation of the family and society, without which there would be neither
civilization nor progress. Maynard v. Hill, 125 U.S. 190, 205, 211 (1888). Accordingly, many
of the guaranteed rights bestowed in our Constitution are largely dependent on the implicit right
to marriage. Due to the contingency of these express rights upon a right to marriage, any
government action which seeks to infringe on a persons ability to marry will be subject to a
searching form of judicial scrutiny. This is a much less objectionable rationale than creating a
fundamental right of same-sex marriage out of whole cloth.

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B. The right to familial autonomy.

--Meyer v. Nebraska, 262 U.S. 390 (1923) (per McReynolds, J.).

Facts: In the aftermath of World War I, several states passed laws to stifle the German culture. At issue
here is Nebraskas Siman Act, which provided: No person, individually or as a teacher, shall, in any
private, denominational, parochial or public school, teach any subject to any person in any language
other than the English language. Robert Meyer was convicted under this Act for teaching German to
his students.
Issue: Whether this law violates the Due Process Clause of the 14th Amendment.
Ruling/Rationale: Yes. Parents have a fundamental right to raise their children as they see fit. The 14th
Amendment prevents the State from materially to interfere[ing] with the calling of modern language
teachers, with the opportunities of pupils to acquire knowledge, and with the power of parents to control
the education of their [children]. The State may do much [and] go very farin order to improve the
quality of its citizens, physically, mentally and morally, is clear; but the individual has certain
fundamental rights which must be respected.
See also Pierce v. Society of Sisters, 268 U.S. 510 (1925) (per McReynolds, J.) (striking down
an Oregon law banning private school education); Stanley v. Illinois, 405 U.S. 645 (1972)
(holding that parents have a right to custody of their non-paternal children).
Lawrence Tribe has called Meyer and Pierce the two sturdiest pillars of the substantive due
process temple. Lawrence Tribe, Lawrence v. Texas: The Fundamental Right that Dare not
Speak its Name, 117 Harv. L. Rev. 1893, 1934 (2004).

--Moore v. City of East Cleveland, 431 U.S. 494 (1977) (plurality opinion).
Facts: In the early 1970s, East Cleveland, Ohio, like many cities across the country, had a city ordinance
that limited the occupancy of a dwelling to a single family. This ordinance, however, contained a
definitional section that limited a family to a small category of related individuals.68 Inez Moore
(plaintiff) lives in East Cleveland with her son, Dale, and her two grandsons, Dale, Jr., and JohnJohn
is Dales nephew, not his son; John came to live in this residence after the death of his mother when he
was one-year-old.
In 1973, Moore received a notice of her violation of this statute from the city, stating that Johns
occupancy in the dwelling was illegal and ordering her to comply with the ordinance. When Moore
failed to remove John from the dwelling, the city filed criminal charges against Moore. At trial, Moore
sought to dismiss the charges because the ordinance was constitutionally invalid. Her motion was
dismissed and she was sentenced to five days in jail and to pay at $25 fine. The sentence and fine were
upheld on appeal.
Issue: Whether the city ordinance violates the Due Process Clause of the Fourteenth Amendment.
Ruling/Rationale: Yes. While the Court has upheld local ordinances restricting cohabitationsee, e.g.,
Village of Belle Terre v. Boraas (1974); Euclid v. Amber Realty Co. (1926)those cases were limited to
the regulation of nonfamily members. This ordinance regulates the family itself; therefore, the
relationship between the challenged law and the citys goals must be examine[d] carefully.
The citys objectives are: to prevent overcrowding, to minimize traffic and parking congestion, and to
avoid undue burdens on the local school systems. These are legitimate goals; however, the challenged
law furthers these goals minimally, at best.
The ordinance does not rationally further parking congestion or trafficit would allow for dozens of
licensed drivers to live together, but would forbid a brother and sister from living together even if they
dont drive. It does not rationally benefit the school system eitherit would allow a mother and father

68
E.g., husband or wife of the head of the household, unmarried children of the head of the household (as long as these children dont
have children of their own), father or mother of the head of the household, etc.
65
 with a dozen children to live together, but it would not permit a grandmother with her son and his
nephew to live together.
--A long line of cases, tracing their roots to cases such as Meyer v. Nebraska (1923) and Pierce v.
Society of Sisters (1925), have acknowledged the importance of the family to the American history and
tradition and have help to ensure that there is a private realm of family life in which the state cannot
enter.
Our decisions establish that the Constitution protects the sanctity of the family precisely because the
institution is deeply rooted in this Nations history and tradition. It is through the family that we
inculcate and pass down many of our most cherished values With this in mind, we cannot close our
eyes to why these doctrines were developed. They were not developed to protect merely the nuclear
family. Rather, they were developed to ensure that a stable unit for fostering our history and culture
could exist without undue governmental interference. Accordingly, since and aunt, uncle, grandmother,
or cousin could help to foster this underlying purpose, these families should be afforded the same
judicial scrutiny the families seen in previous cases.

C. Right to private sexual autonomy.

1. Private reproductive autonomy.69

--Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) (per Douglas, J.).
Facts: In 1935, Oklahoma passed the Habitual Crime Sterilization Act. The Act permits the State to
sexually sterilize habitual criminalsif they commit two or more felonies involving moral
turpitude. The determination of sterilization would be made after a jury trial. When sterilizing the
criminals, men would be subject to a vasectomy, and women, a salpingectomy.70 Sec. 195 of the Act
provided that offenses arising out of the violation of the prohibitory laws, revenue acts, embezzlement,
or political offenses, shall not come or be considered within the terms of this Act. In other words,
white-collar crimes were not punishable by sterilization.
Issue: Whether a statute, that penalizes certain crimes with sexual sterilization, violates the Fourteenth
Amendment Equal Protection Clause.
Ruling/Rationale: Yes. Due to the fact that grand larceny is defined as feloniously stealing property that
exceeds $20, and embezzlement is feloniously stealing property equal to which was embezzleda
person who steals $20 three times from a cash register would be subject to sexual sterilization, but, if the
defendant worked there, it would be embezzlement; and they would not be subject to sterilization.
Sterilization of those who have thrice committed grand larceny, with immunity for those who are
embezzlers, is a clear, pointed, unmistakable discrimination.
--Marriage and procreation are fundamental to the very existence and survival of the race. The power
to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands,
it can cause races or types which are inimical to the dominant group to wither and disappear. There is
no redemption for the individual whom the law touches.
--[S]trict scrutiny of the classification which a State makes in a sterilization law is essential, lest
unwittingly, or otherwise, invidious discriminations are made against groups or types of individuals in
violation of the constitutional guaranty of just and equal laws. The guaranty of equal protection of the
laws is a pledge of the protection of equal laws. Yick Wo v. Hopkins, 118 U.S. 356 (1886). When the
law lays an unequal hand on those who have committed intrinsically the same quality of offense and

69
Early on, the Supreme Court refused to acknowledge any right to procreation or private sexual autonomy. See Buck v. Bell, 274
U.S. 200 (1927). In Buck, the Court described Carrie Buck as a feeble-minded white woman. In 1980, however, several legal
scholars tracked down Carrie Buck and found out she was a woman of average intelligence. See Stephen Jay Gould, Carrie Bucks
Daughter, 2 Const. Comment. 331, 336 (1985). She was one of almost 20,000 forced eugenic sterilizations that had been performed
in the early1900s. Id. at 332.
70
The surgical removal of the fallopian tubes.
66
 sterilizes one and not the other, it has made as invidious a discrimination as if it had selected a particular
race or nationality for oppressive treatment.
Stone, C.J., concurring: I think the real questionis not one of equal protection, but
whethersuch an invasion of personal libertysatisfies the demands of due process.

--Griswold v. Connecticut, 381 U.S. 479 (1965) (per Douglas, J.).

Facts: A Connecticut statute provided that it is a crime, punishable by a fine and imprisonment of up to
one year, to use any drug, medicinal article or instrument for the purpose of preventing conception;
another statute punishes an accessory as though they were a principal. Appellants were the Executive
Director of the Planned Parenthood League of Connecticut (Dr. Griswold), and a licensed physician at
the Yale Medical School who worked for Planned Parenthood (Dr. Buxton). The appellants gave
information, instruction, and medical advice to a married couple as to the means of preventing
conception. They were charged as accessories in violating Connecticut law.
Issue: Whether a law that seeks to prohibit a married couple from using/obtaining contraception is
unconstitutional.
Ruling/Rationale: Yes. The Connecticut statute forbidding use of contraceptives violates the right of
marital privacy which is within the penumbra of specific guarantees of the Bill of Rights.
--In cases such as Meyer v. Nebraska (1923), Pierce v. Society of Sisters (1925), NAACP v. Alabama
(1958), and others, the Court has held that there are peripheral rights not specifically enumerated in the
First Amendment, but without these peripheral rights, the enumerated rights would be far less secure.
In other words, the First Amendment has a penumbra where privacy is protected from governmental
intrusion.
In the same way that the First Amendment has penumbral rights not explicitly mentioned in the
Constitution, the Bill of Rights in general has penumbras, formed by emanations from those guarantees
that help give them life and substance. Various guarantees create zones of privacy.71 Within this
penumbra can be found some of the most fundamental rights in American traditione.g., the right to
rear your child without undue governmental interference; the freedom of association; the right to marry
whom you choose; and a right of privacy older than the Bill of Rights.
Goldberg, J., concurring: Emphasized, what he believed to be, the importance of the Ninth
Amendment when deciding cases of unenumerated rights: I believe that the right of privacy in
the marital relation is fundamental and basica personal right retained by the people within
the meaning of the Ninth Amendment.
--He also put a heavier emphasis on the protection of family life: The entire fabric of the
Constitution and the purposes that clearly underlie its specific guarantees demonstrate that the
rights to marital privacy and to raise a family are of similar order and magnitude as the
fundamental rights specifically protected.

--Eisenstadt v. Baird, 405 U.S. 438 (1972) (per Brennan, J.).

Facts: Under Massachusetts state law in the early 1970s, it was a crime for any non-medical professional
to furnish a non-married person with contraceptives.72 After giving a lecture at Boston University,
William Baird was charged under this act for exhibiting contraceptives and for giving a young woman a
package of vaginal foam (a type of contraceptive) during the course of the lecture.

71
First Amendmentfreedom of association, freedom to read what you choose, symbolic expression, etc.; Third Amendment
freedom from soldiers quartering your home; Fourth Amendmentfreedom from unreasonable searches and seizures; Fifth
Amendmentfreedom from self-incrimination; etc.
72
The actual law allowed for a five-year prison sentence for whoevergives awayany drug, medicine, instrument or article
whatever for the prevention of conception, unless the prescriber was a registered physician or a pharmacist acting at the behest of a
registered physician. Either way no contraceptives could be given to any non-married person.
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 The Massachusetts court overturned the conviction for the displaying of contraceptives on First
Amendment grounds, but upheld the conviction for distributing contraceptives. On appeal, the First
Circuit overturned all convictions, basing its holding on the Griswold v. Connecticut ruling.
Issue: Whether a law that proscribes the distribution of contraceptives to non-married persons violates
the Equal Protection Clause of the Fourteenth Amendment.
Ruling/Rationale: Yes. [W]e hold that the statute, viewed as a prohibition on contraception per se,
violates the rights of single persons under the Equal Protection Clause of the Fourteenth Amendment.
--The States purported purposes for this law were (1) to discourage extramarital sex, (2) to promote the
health of its citizens by ensuring that only doctors gave out medicinal products, and (3) contraception is
immoral per se. The Court held that the challenged laws discrimination between married and
unmarried persons was not rationally related to any of these state interests.
Extramarital sex. The States may punish adultery, fornication, bigamy, etc. The means by which
Massachusetts chose to use here, however, will not survive constitutional scrutiny for the following
reasons: (a) fornication is a misdemeanor in Massachusetts, and a state could not reasonably wish to
punish a misdemeanor by forcing an unwanted child on the fornicator; (b) the state could not reasonably
wish to punish the distributor of contraceptives as a felon for aiding and abetting the misdemeanor of
fornication; (c) the law did not prohibit the distribution of contraceptives to unmarried persons for the
purpose of preventing sexually-transmitted diseases; and (d) the law made no attempt to ensure that
contraceptives legally obtained by a married person for the purpose of preventing pregnancy would not
be used in an extramarital affair.
Promoting health. The Massachusetts law could not reasonably be held to promote health, as
whatever health risks posed by contraceptives were just as great for married persons as unmarried
persons. (In Justice Whites concurring opinion he also noted that most of these products do not pose
any serious health risks to anyonea condom or the foam seen in this case will not harm anyone
regardless of who supplied them.)
Immorality. Then why discriminate between married and unmarried persons? Answer: because this
law was created shortly after the Griswold decision and this law was basically a big workaround to
ensure that the maximum amount of people could not use contraception.
--If the right of privacy means anything, it is the right of the individual, married or single, to be free
from unwarranted governmental intrusion into matters so fundamentally affecting a person as the
decision whether to bear or beget a child.

2. Private non-reproductive sexual autonomy.

--Lawrence v. Texas, 539 U.S. 558 (2003) (per Kennedy, J.).

Facts: The State of Texas had a statute that made it a crime for two persons of the same sex to engage in
certain intimate sexual conductessentially, an anti-sodomy law. In 1998, Houston police responded to
a reported weapons disturbance in a private residence. When they arrived, they entered the defendants
(Lawrence) apartment to find him and another adult male engaging in a private, consensual sexual act.
The police then arrested them for committing deviant sexual behavior. The two men appealed to the
Supreme Court arguing this law violates their due process rights under the Fourteenth Amendment.
Issue: Whether Texas anti-sodomy law violates the Fourteenth Amendment Due Process Clause.
In other words: whether adults are free to engage in private sexual conduct in the exercise of
their liberty under the Due Process Clause.
Ruling/Rationale: Yes. Explicitly overturns Bowers v. Hardwick (1986). The reason the Court
decided this case on due process rather than equal protection grounds is because Bowers was decided on
due process grounds. If the Court were to deem anti-sodomy laws unconstitutional under the Equal
Protection Clause, this could raise questions as to whether laws prohibiting certain sexual conduct
between both hetero- and homosexuals would be constitutional. By doing this under the liberty aspect

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 of the Due Process Clause, the ruling is more all encompassing. The Constitution protects from
government intrusion concerning consensual sexual acts between adults.
--The Bowers Courts initial substantive statement: The issue presented is whether the Federal
Constitution confers a fundamental right upon homosexuals to engage in sodomy... discloses the
Court's failure to appreciate the extent of the liberty at stake.
Although the laws involved in Bowers and here purport to do no more than prohibit a particular
sexual act, their penalties and purposes have more far-reaching consequences, touching upon the most
private human conduct, sexual behavior, and in the most private of places, the home. They seek to
control a personal relationship that, whether or not entitled to formal recognition in the law, is within the
liberty of persons to choose without being punished as criminals. The liberty protected by the
Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of
their homes and their own private lives and still retain their dignity as free persons.
--Mentions the fact that the Bowers opinion acknowledged that the 14th Amendment protects liberty
interests concerning marriage, procreation, contraception, family relationships, child rearing, and
education; yet held it does not protect private sexual acts because there is no fundamental right to
engage in homosexual sodomy in the Constitution. This fact casts the Bowers decision into even more
doubt.

3. The right to abortion.

--Roe v. Wade, 410 U.S. 113 (1973) (per Blackmun, J.).

Facts: The State of Texas passed a statute which makes it a crime to procure and abortion, [except] an
abortion procured or attempted by medical advice for the purpose of saving the life of the mother. Jane
Roe (Norma McCorvey) became pregnant in 1970. She went through several unsuccessful attempts at
an illegal abortionfalse rape claim and an illegal abortion site. She gave birth later that year. Roe
then brought a class action challenging the constitutionality of the Texas criminal abortion laws.
Issue: (1) Whether the case presents a justiciable case or controversy, due to the fact that Roe was not
pregnant during the District Courts hearing.
(2) Whether Texas criminal abortion laws are unconstitutional (i.e., whether an abortion is protected by
the Constitutions penumbral right to privacy).
Ruling/Rationale: (1) Yes. Roe has standing to bring this suit. While Roe was not pregnant during the
trial dates, and was not subjected to legal punishment, this case still presents a suitable case or
controversy. Due to the fact that the normal pregnancy term is around 270 days, this period of time is
too short for a pregnant woman to remain pregnant through the usual appellate process. Therefore,
pregnancy fulfills the capable of repetition, yet evading review exception to the mootness rule.
(2) Yes. The Constitution does not explicitly mention any right of privacy. [A] line of decisions,
however, [shows] the Court has recognized that a right of personal privacy, or a guarantee of certain
areas or zones of privacy, does exist under the Constitution. The Court has also made clear that only
rights that can be deemed fundamental or implicit in the concept of ordered liberty are included in
this guarantee of personal privacy. See, e.g., Loving v. Virginia (1967); Skinner v. Oklahoma (1942);
Meyer v. Nebraska (1923). The issue then becomes whether a womans decision whether or not to
terminate a pregnancy is fundamentalwhich it is. This right to privacyis broad enough to
encompass a womans decision whether or not to terminate her pregnancy. Founded upon the
Fourteenth Amendment Due Process Clause, the Ninth Amendment, and the penumbral right to privacy
found in the Bill of Rights.
--While the right of personal liberty includes the abortion decision, that right is not unqualified. Since
this abortion right is fundamental, the State must show a law forbidding them is narrowly drawn to
further a compelling State interest. Here, the States interests are (1) protecting the health of the
mother and (2) protecting the health of the unborn baby. Both are compelling.

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 --In the first trimester this is not going to happenthe baby is not viable and the mother is more likely
to be hurt or killed if she takes the baby to term. In the second trimester, however, certain state laws
may be narrowly tailored to further these intereststhe State may, for example, pass laws to ensure the
abortion is done in a safe manner and that the health of the mother is protected. But in the third
trimester, the baby may very well be viable; this gives the government more leeway in passing laws
concerning abortionthe life and health of the mother, however, overrides the States interest in
protecting the unborn baby. In short, the right to an abortion is fully constitutionally protected in the
first trimester.
--To summarize and to repeat:
1. A state criminal abortion statute of the current Texas type, that excepts from criminality only
a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without
recognition of the other interests involved, is violative of the Due Process Clause of the
Fourteenth Amendment.

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and
its effectuation must be left to the medical judgment of the pregnant woman's attending
physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in
promoting its interest in the health of the mother, may, if it chooses, regulate the abortion
procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of
human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary,
in appropriate medical judgment, for the preservation of the life or health of the mother.

--Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) (per OConnor, J.).
Facts: The Pennsylvania Abortion Control Act of 1982 contained 5 provisions that sought to regulate
and restrict abortions. The Act required: (1) a woman seeking abortion must giver her informed consent
prior to the abortion procedure; (2) she must be provided with certain information at least 24 hours
before the abortion is performed; (3) if the female is a minor, she must obtain the informed consent of
her parents (a judicial bypass clause was included); (4) if the female is married, she must sign a
statement indicating that she has notified her husband of her intended abortion; and (5) the Act imposed
certain reporting requirements on facilities that provided abortion services. Five abortion clinics, a
physician representing himself, and a class of doctors who provide abortion services brought suit
alleging each of the provisions was unconstitutional on its face.
Issue: Whether these five provisions of the Abortion Control Act are unconstitutional under the
precedent set in Roe v. Wade (1973).
Ruling/Rationale: Yes and No. The Court upheld all but the spousal approval provision. [P]rinciples of
institutional integrity, and the rule of stare decisis require that Roes essential holding be retained and
reaffirmed as to each of its three parts: (1) a recognition of a womans right to choose to have an
abortion before fetal viability and to obtain it without undue interference from the State; (2) a
confirmation of the States power to restrict abortions after viability, if the law contains exceptions for
pregnancies endangering a womans life or health; and (3) the principle that the State has legitimate
interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus
that may become a child.
--The Court laid out several guiding principles to be used concerning abortion law: (a) To protect the
central right recognized by Roe while at the same time accommodating the States profound interest in
potential life, the undue burden standard should be employed. An undue burden exists, and therefore a
provision of law is invalid, if its purpose or effect is to place substantial obstacles in the path of a
woman seeking an abortion before the fetus attains viability. (b) Roes rigid trimester framework is
rejected. To promote the States interest in potential life throughout pregnancy, the State may take

70
measures to ensure that the womans choice is informed. Measures designed to advance this interest
should not be invalidated if their purpose is to persuade the woman to choose childbirth over abortion.
These measures must not be an undue burden on the right. (c) As with any medical procedure, the State
may enact regulations to further the health or safety of a woman seeking an abortion, but may not
impose unnecessary health regulations that present a substantial obstacle to a woman seeking an
abortion. (d) Adoption of the undue burden standard does not disturb Roes holding that regardless of
whether exceptions are made for particular circumstances, a State may not prohibit any woman from
making the ultimate decision to terminate her pregnancy before viability. (e) Roes holding that
subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it
chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical
judgment, for the preservation of the life or health of the mother is also reaffirmed.
--It is a promise of the Constitution that there is a realm of personal liberty which the government may
not enter.

71