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Constitutional Law II Outline—Spring 2004 Page 1 of 59

Professor Amann Outlines Bank


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School: University of California, Davis School of Law
Course: Con Law II
Year: Spring, 2004
Professor: Professor Amann
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Constitutional Law II Outline—Spring 2004 Page 2 of 59
Professor Amann

Introduction to Constitutional Interpretation

Declaration of Independence
A. 1st document of Constitutional law, issued July 4, 1776
B. Aspirational Document—probably not enforceable, but holds
values and principles this country aspires to
1. Is Supplemental documentation to Constitutional
2. Contains the notion of popular sovereignty
3. Introduces notion of king as a tyrant
a. King as the executive stepping on other branches—
dissolving the legislature (i.e. the people’s voice)
b. Imposing on judicial independence by disposing of
unfavorable judges
c. Over-militarization of the govt & fear of the military
dominating civil govts

I. Articles of Confederation
A. Weak document
1. States retain too much sovereign power
2. Legislature is unicameral
3. Trade function of the national govt doesn’t work b/c
individual states coin own $$, charge taxes
4. Driven by notion of republicanism—i.e. having the govt
come together for the common good when necessary, but
otherwise remaining local

II. Constitution and the Bill of Rights

A. Differs from Articles:
1. Strengthens power of the central govt
a. Executive—President, but not like a king
b. Legislature—Bicameral (one based on ## of states to
protect the smaller states & one based on ## of people
to protect people from the elite)
c. Judiciary—Innovative b/c lifetime tenure + set salaries
2. Keeps the system of checks and balances
a. Marbury v. Madison: Introduces the concept of judicial
review—Ct deciding whether Congress or Prez or States
have overstepped their boundaries
b. May be amended
B. Debate over the Need for a Bill of Rights
1. Federalists: Inalienable rights exist, even though are not
spelled out. These rights are not taken from anyone unless
specifically declared
a. Madison’s speech: Recognizes the danger of abuse;
Proposes a compromise
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2. Bill of Rights—Rights considered fundamental
C. President Bush’s post-9/11 activity
1. Executive Order: Targeting non-citizens affiliated with Al
Quaida or another terrorist group
a. No time limit for detention
b. No procedure to review detention
(1)Trial is by “special” military tribunal
2. Jose Padilla: US Citizen declared an enemy combatant
3. Bill of Rights concerns
a. 1st A: Freedom of speech—when do words alone
justify punishment and Freedom of association—need
to define “affiliated with al quaida”
b. 4th A: Search and Seizure—Pre-trial detention =
c. 5th A: Right to counsel and other fair trial rights
d. 6th A: Right to Trial provisions
(1)But unclear if this is a criminal prosecution
4. Checks and Balances questions
a. Is Congress the only branch that can set up courts?
b. Can the prez set up other types of courts?
c. Is it ok that there is no role for the judges?
d. re: Prohibition to suspend a writ of habeus corpus
(here: may not have a hearing if a person is held
lawfully, and the prez says no court may issue writs)

III. Is the Court the Supreme Constitutional Interpreter?

A. Cooper v. Aaron (1958): Post-Brown. Little Rock School Bd’s
plan to desegregate over a 3-4 year period. Little Rock H.S.
incident—Desegregation in motion. Governor decides to
intervene b/c he believes he can interpret the Constitution
since the S.Ct got it “wrong.” Held: The JUDICIARY HAS
FINAL SAY in interpreting the Constitution.
1. Here, the court refused to yield to mob violence
2. This is similar to Prez Bush’s current orders. There, Prez is
acting to interpret the Constitution to protect national
security. Is it the wrong state officer interpreting the
Constitution incorrectly?
3. BUT…this also raises questions of enforcement. Who will
enforce the rulings of the court should the other branches
decide that the court’s ruling is wrong?
a. Thus, the court’s legitimacy is based upon others’
willingness to go along with their rulings
B. Ed Meese’s argument
1. Court does not have carte blanche to interpret the
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2. All officers take the oath, have the duty to interpret the
a. This is President Bush’s argument—i.e. that he is doing
his duty of upholding the Constitution

IV. Slavery, the Constitution and the Court

A. Thomas Paine
1. Slaves are inoffensive (i.e. not criminals) & thus, being
involuntarily held
2. POWs—legal justification for the slave trade
3. Fuels the abolitionist movement
a. Appeals to sentiments against oppressive rule
4. Refers to the Bible/Christianity
a. Christian becomes a symbol of “civilized”
5. Appeals to Natural Law (as opposed to positive law—which
is written, ratified)

B. The absence of “slavery” in the Constitution

1. Needed accommodation for slavery in order for the
Constitution to survive
2. 3/5 clause (how congressional representatives are
a. Slaves (“all other persons”) count as 3/5 person for
purposes of taxes and reps
(1)Indians = 0; Free persons, indentured servants = 1
b. Federalist 54—Deals w/ the 3/5 clause
(1)This solution dealt w/ the problem of whether a slave
was property or a person
(a) North wanted slaves as ppl to get more
representation w/o taxes
(b)South had ppty interest in slaves
3. Importation Clause
a. Allows slaves to be brought to US until 1808 (20 more
b. Shows the compromise b/t abolitionists and slave-

C. The Antelope (1825): US coast guard seizes ship in waters

surrounding the US. 280 Africans on board. Spain and
Portugal sue for the return of their property. US appears as
the “next friend” of the Africans (i.e. Δ).
1. Held: Marshall: Every nation has the right to have its own
laws → law of nations. (now called international law)
a. When there is a conflict of laws, then individuals are
only subject to the law of the (sovereign) states
2. Law of nature (i.e. universal truths) also implicated
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a. This source of law is trumped by the law of nations
b. Marshall begins to call the law of nature “feelings”—
Can’t use “feelings” unless it becomes expressed as
positive law or in the law of nature
3. Remedies
a. Portugal not given back slaves, Spain given back some
b. Allegations that slave owners may have been Americans
clothed in a flag of another country

D. Prigg v. Pennsylvania (1842): Penn. statute barred self-help

in the return of slaves. Prigg is a slave owner who was
convicted in a criminal case under Penn law for trying to get
his fugitive slave back. Prigg appeals conviction based on
theory that Penn law in unconstitutional [Constitution, Article
IV § 2[3] allows a slave owner to reclaim a fugitive slave from
a free state].
1. Held: Federal law trumps state law
2. This clause reflects the compromise part of the constitution
3. Justice Story: This clause is self-executing, meaning no
additional legislation is needed by Congress. Thus, since
clause is self-executing, one can exercise self-help
a. Clause is very clear (like the prez must be 35 years old)
b. Majority’s approach reflects that this clause was a
4. Justice Tawny (concurrence): Agrees w/ result, but believes
that states should be able to legislate. Sees this as a
compromise b/t states.
5. Justice McLean (dissent): Fugitive Slave Act does not
address self-help. Process set up by Fed Govt in which
owner was to go to the magistrate or federal judge → need
a hearing. Thus, self-help not allowed

E. Frederick Douglass—argument
1. Born a slave of mixed heritage, abolitionist
2. Need strict construction of the Constitution—no room for
a. Look to the plain language and if there is an answer,
don’t go further
3. Argues that “slave” is not in the Constitution
4. Art. IV, §2[3] is not a fugitive slave clause; is an escaped
indentured servant clause
5. Under Douglass’ interpretation, can have freed slaves (i.e.
free people) w/o a constitutional amendment
a. Reflections the idea of a living constitution, that the
Constitution can change over time
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b. Also demonstrates that Constitutional interpretation is
how one constructs it and which sources one believes
are relevant

F. Dred Scott v. Sandford (1857): Scott is born a slave in

Missouri (slave state), but owner travels to Illinois (a free
state), then back to Missouri. Scott argues that he was free
by virtue of traveling through Illinois. Case in federal court by
diversity jx.
1. Held: The case is thrown out for lack of federal jx b/c Scott
was a slave, not a citizen. The forum state’s law’s could be
2. Example of judicial activism. Could have stopped by
deciding which state’s law applied. But went further and
commented on citizenship
a. Justice Tawney probably wanted to end the slavery
controversy (i.e. whether slavery was Constitutional and
the statute Constitutional)
3. Holding: People of African ancestry, whether born into
slavery or born to free parents, are NEVER free citizens in
the eyes of the Constitution
4. Majority: Look @ Framers’ intent: “all men” ≠ entire
human race
a. Dissent: Not inconsistent for the framers to say “all
men” to mean all men. Constitution applied to both
free and non-free slaves
(1) Words were for future generations, understanding
that allowing non-free states into the Constitution
was a compromise.
(2)Framers’ intent was eventually for all men to be free

G. Civil War
1. Lincoln elected
2. South Carolina secedes
a. Leads to a Constitutional crisis of whether a state could
secede or are they in the republic forever?
3. Emancipation Proclamation: Southern states have 3
months to rejoin the union and then slaves will not be free.
If they don’t rejoin the union, then slaves freed. All
Southern states refused. No immediate effect
a. Is this document even Constitutional? Can the prez
declare slavery unconstitutional—isn’t this the court’s or
states’ duty?
4. Post-Civil War:
a. States want to rejoin
b. No southern reps in legislature
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H. Reconstruction Amendments
1. 13th A (1865)—No slavery or involuntary servitude in
the US
a. Passed quickly b/c no opposition from absent Southern
2. 14th A (1868)—
a. Overrules Dred Scott: If born here, person is a citizen
(federal and state). No state can decide issues of
b. P&I Clause: No state shall make or enforce any law
which shall abridge the privileges or immunities of
citizens of the US
(1)Broad and sweeping
(2)Does not apply to private action
c. Equal Protection/Due Process Clause
3. 15th A—Right to vote shall not be denied on account of
race, color, or previous condition of servitude

Equal Protection Clause

“No State shall make or enforce any law which shall abridge
the privileges and 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.”
I. General concepts
A. EPC implicated only when the government makes a
1. 14th A applies directly to states
2. Federal govt—Bound by the same rules of equal
protection via indirect means of the 5th A’s due
process clause. Thus, if an action violates the EP for a
state, the same action would be unconstitutional if done by
the federal govt.
B. Drafted 1865 → Ratified 1868
1. Condition reinstatement of the Southern states into the
union (i.e. Cannot get Congressional representatives to sit
unless the states will ratify the 14th)

II. From the Separate-but-Equal Doctrine to Brown

A. Plessey v. Ferguson (1896): π was 7/8 white. Under LA law,
he was black, and not allowed to ride in white RR car.
Misdemeanor crime for anyone who violated this statute [that
RRs must maintain ‘separate, but equal’ accommodations for
white and colored races]
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1. Held: Statute is constitutional. States can legislate
separate but equal accommodations in virtually all
activities—except certain civil society tasks (juries, voting,
etc.)—eventually this will be proven false
a. Std of review: REASONABLENESS (i.e. low-level)
b. Defer to the legislature—Reflects democracy b/c
legislature is voted by the people. Judges are iinsulated
from the democratic process
c. e.g. of JUDICIAL RESTRAINT—Ct sees this as a state
issue—not a Constitutional one.
d. EPC doesn’t reach out to a “private sphere”/social
equality (sees transportation as a “social issue”—i.e.
where people feel comfortable sitting)
2. Justice Harlan (dissent): This is NOT a reasonable
regulation. The statute’s purpose is to hold people of color
in an inferior position.
a. The EPC reaches public transit
b. Also points out irony that Asians are treated as whites.
3. Here, a criminal penalty is implicated. If a criminal
penalty is implicated, the court is more likely to
take a closer look b/c of the stigma of being
declared a criminal.
4. Possible 13th A argument: 13th A was to get rid of slavery.
Directing blacks to another car could be “badges +
incidents of slavery.” (i.e. seeing the why of it) Slavery is
about forced inferiority of an entire class of people based
on assumptions of their capabilities.
a. “Incidents of slavery” = keeping people down even
though they are not enslaved
b. 13th A enjoins everyone in the US from engaging in
(1)Thus, no state action is necessary
(2) Can stretch the meaning of “slavery” to the badges
+ incidents of slavery
5. Post-Plessy
a. NAACP strategy to make incremental victories
b. New court steps in w/ Thurgood Marshall (C.J.) + Justice
Black (former KKK member, but strongly against Plessy)

B. Development of the levels of scrutiny

1. Early Con Law opinions, Ct is really vague.
a. Look @ plain meaning first
b. Plessey: Just look @ whether the statute is reasonable.
If reasonable, then survives scrutiny of equal protection
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(1)Harlan (dissent): Apply the reasonableness test to
take a harder look @ the legislature’s motives
2. Post-1960s—Opinions articulate the idea of level of

C. RATIONAL BASIS TEST/Minimum Level EPC Scrutiny

1. RR express (1949): NYC passes a law prohibiting business
advertisements on the sides of trucks unless you owned
the truck and the ad was related to owners’ busiiness.
Justifies law as trying to increase traffic safety. Held:
a. Defers to the legislature’s wisdom
b. Economic or business classification implicated →
always low level rational scrutiny
(1)Strong presumption that legislature is acting w/in
(2) Ct fears return to the Lochner Era, where ct gets
involved in economic/ppty regulations under the due
process clause
(3)Trust that businesses can work w/ the local
governments in the democratic process
2. Carolene Products—Prohibiting filled (substituting better
& replacing it w/ vegetable oil) milk. Ct: Even though the
consumer is the effected party, Ct will defer to the
legislature’s wisdom to avoid regulating the economy
a. fn 4: Ct should take a harder look in some cases—e.g. if
Bill of Rights violated by the legislature + if a group is
not involved in the political process (i.e. if no level
playing field, ct will take a harder look) + if group is a
discrete and insular minority
3. General rule: Classification will satisfy the EPC if: (1)
reasonably related to (2) legitimate governmental
a. Defer to legislative wisdom
b. Analysis:
(1) Is what the govt did reasonably related to a
legitimate govt purpose?
(2) What is the distinction—i.e. who is being treated
differently from whom? What is the classification?
(3)“Fit” question—How close is the fit b/t objective and
(a) Lowest level of scrutiny: Reasonably related
(b)Higher level of scrutiny: Closer fit, beyond

III. Brown and Theories of Constitutional Decision-Making

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A. Brown v. Bd of Education (1954): Actually, 4 cases
consolidated to challenge the “separate but equal”
(segregationist) policies in public school education @ primary
and high school levels.
1. Held: Separate facilities are inherently unequal and
inherently violative of the equal protection clause
a. Even if “tangibles” (i.e. funding, facilities) are equal, the
non-tangible is inherently unequal. Separation conveys
a message that one group is better than the other. The
suffering group is suffering under the equal protection
of the law.
b. Also, special role of education as a national issue. Ct
can intervene w/ education—even though it is typically
a local govt function—b/c of its role in developing good
2. Overrules Plessy
3. Justification by “dolls study” (psychological student of
a. Ct refuses to rely on the history of the 14th A—too
(1)No public schools @ time of the 14th A
B. Brown II (term after Brown I, which decided that segregation
in public schools was not ok): Dealt w/ the remedy. Held:
School districts “should try and desegregate in accordance w/
the holding at all deliberate speed.”
1. Federal judges to monitor this process  opens a new era
of judicial supervision
2. After this decision, then judges to monitor other
desegregation decisions (i.e. swimming pools, police
a. Thus, all local functions to be monitored by the federal
3. Freeman v. Pitts (1992): Atlanta school district is still
segregated (de facto)—mostly due to changing residential
patterns (i.e. white flight), not local govt action. Plaintiffs
seek more aggressive methods (bussing, gerrymandering
school zones) to desegregate the schools—since evid
shows that schools more segregated now than in time of
a. Held: Here, segregation cannot be traced to unlawful
segregation of Brown. Ct cannot control the change in
the private housing market.
b. Thus, federal courts end judicial supervision in
C. Bolling v. Sharpe (1954): Segregation in DC public schools.
1. Held: Unconstitutional.
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a. b/c DC is not a state, 14th A does not apply
b. Ct relies of 5th A’s due process clause (although no
equal protection clause)
(1) Brown decided on 14th A, so doesn’t apply
(2)Ct looks @ “liberty” in 5th A
(a) The concept of equal protection is inherently in
“due process.” Equal protection is only a subset
or specific type of due process
(i) Both equal protection and due process have an
overriding principle of fairness (i.e. not acting
(b)Liberty involves the ability to go to school and
avoid arbitrary obstacles.
2. The court also introduces the idea of nature of
classification, govt purpose, and fit.
a. Ct talks in terms of rational basis, but indicates that
“particular careful scrutiny” is going on
b. Here, Classification: suspect [based solely on race]; fit:
not reasonably related to proper govt purpose

D. Theories of Constitutional Decision-making: Need

theories to set boundaries for the scope of judicial review (to
make the court’s decisions more predictable). Theories limit
judicial review against the countermajoritarian difficulty (i.e.
the idea that the court is going against the
majority/representatives by democracy by overruling the act
of congress; also concern b/c the court is not accountable to
the people since judges have life tenure).
1. Originalist Theories
a. Use different sources to glean the intent of the
Constitutional provisions @ time it was written.
(1)Text—Start @ the plain meaning and if clear, then
(a) Look @ the meaning of the words as they meant
at the time they were written
(b)See the text as a social “deal” at the time the
Constitution was passed
(c) If this is problematic, then amend the Constitution
(2) Historical References—Text is not the only indicator
of the meaning. By using historical references,
acknowledge that the meaning at the time was a
little more complex
(a) Still must stick with the meaning at the time
(3)Holistic/structural theories—After looking at the text
& historical references, look at the structure (the
questionable phrase in context of the rest of the
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document/historical documents). Structurally, look
@ principles (e.g. that the constitution was set up to
limit the power the govt)—
(a) Still must look @ the meaning at the time
b. Criticism: Ongoing consent—Things change as time
passes. Immigrants, slaves, women didn’t consent to
the original deal. Also how to verify what the founders
really meant
2. Legal Process/Proceduralist Theories
a. Constitution is about procedure
(1)Assumes the process is fair and will bring good
outcomes. Procedure is “neutral.”
(2)Judges should only step in when the political process
has been dysfunctional or procedurally flawed. Thus,
judges should not be making substantive judgments
of what is good or bad.
b. Focus on the HOW you got the answer—not the what.
(1)Outcome should NOT drive the inquiry
c. Public Choice Theory: “market” theory of politics.
Everyone has an equal voice to the extent that the
process are fair.
(1)Assumes that having set rules forces everyone to
play by the rules and eliminates the possibility of
d. Representation reinforcement theory—If political
processes break down, then judges step in (e.g. discrete
and insular minorities left out of the political process)
e. Criticism: Nazi laws—full of procedure. But questionable
solution if the procedures are substantively evil and
cannot be rooted out by neutral principles
3. Evolutive Theories
a. “Living” Constitution—Interpret the Constitution
according to contemporary needs
b. Civil Republicanism—Notion that democracy comes
together for the common good. If originalist meaning is
bad for the civil virtue, ok to overturn it.
c. Criticism: Personal bias of the judge rides heavily

E. Amann’s Synthesis of Interpreting the Constitution (now,

no judge is so strict that they will stick to only one method.
as a litigator, try to appeal to the majority) Think of the chart
as a pyramid. The lower the judge goes, the more discretion
she has.
1. Constitutional text—If specific enough and the words still
mean the same thing today as they did when written
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→ focused (e.g. need to be 35 years old—means same
today as way back when)
→ open (words that don’t have lots of meanings & create a
need to look beyond the text)
→ context of the entire Xn (canons of statutory
construction—i.e. what the legislators means when they
said different things)
[this implicates the rule against surplussage: giving
meaning to every word.]
• e.g. bolling v. sharpe—would be surplussage if
the 5th A mentioned equal protection since it is
already a part of due process & mentioning equal
protection would imply that it only included equal
protection and not other aspects of due process
2. Original Intent—What the authors meant when they
wrote the provision (this is also often inconclusive
3. Precedent & Practice—Pragmatists—Con Law is just
another c/l rule
4. Purpose—Look @ purpose of the Constitution, but w/ the
knowledge of things the framers couldn’t contemplate (e.g.
electronic surveillance)
5. Practicality & Resistance—More like a policy or political
question. Judicial restraint recognizes that the court
cannot do too much w/o compromising its legitimacy.
Fear of being ignored—acknowledges that the court is only
as powerful as the other branches let it be. Thus, defer to
the idea of incremental change
6. Ethical & Political Norms—More activist thinking.
Invocations to democracy—judge asks, “what would a
democratic country who believes in democracy do?”

IV. The Constitution and Racial Discrimination

A. Why Race? What is Race?
1. The Court and Discrimination Against Persons of Asian
a. Chae Chang Ping v. US: Federal law prohibits Chinese
laborers in the country. Ct. recognizes this is a racial
classification, but sustains the rule—deferring to the
(1)Ct is also reluctant to extend EPC to other group
besides African-Americans, for whom it was intended
b. Yick Wo v. Hopkins: Petitioner (Δ) files a petition of
habeus corpus. Δ operated laundry for 22 years in SF.
Δ is a non-citizen/alien Chinese [ppl of Chinese ancestry
not allowed to be citizens]. Δ had no previous
infractions. SF Bd of Supervisors denied his license to
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operate a [wood] laundry, but he still operated it and
was cited w/ a misdemeanor. SF Bd of Supervisors
denied license on the grounds of public
safety/preventing fires, but approved other non-chinese
[wood] laundries and denied all chinese applications.
(1) Held: Ordinance discriminates against Chinese and
thus, violates the Equal Protection Clause
(2) Facially neutral statute, but
discriminatory application
(a) Ct examines the history of discrimination directed
@ Chinese
(b) The only apparent reason for denial of the license
= race. This violates the equal protection of the
(3)Classification is race, so ct takes a harder look—even
though this does not refer to African-Americans
(4) Strict scrutiny applied here. A compelling govt
interest (i.e. preventing fires) present here. Fit was
problematic. Need the fire marshals to check the
laundries—not decide that certain racial groups
should not have laundries.
c. Korematsu v. US: Japanese-American/US citizen.
Defies WWII military order that ordered JAs to camps.
Korematsu cited for misdemeanor violation and is put in
jail. Eventually files a habeus corpus petition.
(1) Held: Constitutional restriction. Govt purpose:
national security, a “pressing public necessity’ → a
high level interest.
(a) This goes to show that not ALL restrictions based
on race are unconstitutional
(b)If the govt interest is high enough, it will trump
the scrutiny of a race-based classification.
(c) Here, two interests in conflict: race based
classification v. highest level interest in national
(d)Racial antagonism is NEVER a compelling state
interest that justifies violation of the 14th A
(a) Roberts: Two contradictory orders issued =
violation of due process
(b)Murphy: Accuses executive branch of “racism”
Situation not dangerous enough to justify martial
law. This is clearly about racial antagonism
(c) Jackson: Military doesn’t always act w/in the
Constitution. But here, FIT is problematic—the
scope of the order was too broad, included
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everyone. Should figure out a process to who was
loyal and who disloyal.
(3)This is the last case that the US S.Ct. upheld a race-
based classification

B. The Antidiscrimination Principle/Formal & Substantive Equality

1. “Race,” as defined by the law, is a social construction—i.e.
the law decides who belongs to which race.
a. This informs out understanding and interpretation of the
14th A
(1)Standard assumes a “sameness:”
(2)Differences matter b/c society says it matters
2. Formal:
a. Antidiscrimination means that the state should not
consider race when making decisions
(1)b/c there are no relevant differences among the
races, legislative distinctions based upon race are
not rational and are therefore illegitimate
(2)EPC requires rationality in state action, not actual
improvement in the social position of racial
3. Substantive
a. Antidiscrimination means that race must be taken into
account when the state makes its decisions
(1)The situations of racial minorities is a consequence of
long-rooted racial subordination in American history.
The only way to rectify that is through state action
helping these groups
(2)EPC requires substantive justice

C. Facial Racial Classifications that Disadvantage

Minorities or Evidence Racial Hostility
1. Loving v. Virginia (1968): White man and black woman.
Convicted for violating Virginia’s anti-micegenation laws.
Punishment: 10 days in jail or promising not to come back
to Virginia for 20 years.
a. Held: Statute is unconstitutional
b. Statute only concerned w/ preserving the white race,
since other non-whites can marry each other
c. Virginia argues Neutral classification, since equal
application of the law
(1) S.Ct: No, this statute makes a race-based
(2)Ct will not settle for formal equality. Need to look
further at what is driving the statute.
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2. Now, facially discriminatory statutes are considered
irrational b/c there is no objective criteria to justify them.
BUT…we are experiencing a tension b/c we’re not
completely comfortable w/ the idea of rushing to give
everyone an equal playing field.

D. Facially Neutral Classifications (Discriminatory Intent

and Effect)
1. Not enough to treat people the same, but for invidious
a. Yick Wo & Loving = Ct determines that racial animous is
fueling the classification → higher level of intent
2. Washington v. Davis (1976): DC police dept requires a
written personal test. Disproportionate number of African-
Americans fails this part of the test, thus, keeping them out
of the police service. Nothing on the race of the
requirement to treat African-Americans differently than
a. Held: Disproportionate impact alone is not enough to
trigger the EPC—esp. since govt interest is compelling
(i.e. want police to have good communication skills).
Not enough evid of discriminatory animous/intent.
b. Facts do not show that disproportionate impact is a
device to discriminate against African-Americans
3. Invidious Discriminatory Intent Test:
a. Plaintiff’s Prima Facie Showing
(1)facially suspect classification, OR
(2)facially neutral, but:

Plaintiff shows intent “a” motive; i.e. “b/c of” such intent

• disproportionate impact (alone does not
end the inquiry, but strong support)
• clear pattern otherwise unexplainable
• sequence of events to decision/act
• procedure, substance departure
• statements at decisionmaking
--cts seldom allow testimony
b. Defendant’s Response
Δ tries to establish that decision/act was based on a
neutral reason; that is, that same decision would have
been made/same act would have been done even if
impermissible purpose not considered.
c. Plaintiff’s Rebuttal
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π tries to show that the neutral reason that Δ asserted
was a pretext—i.e. was not the real reason—and that
but for Δ’s desire to discriminate on an impermissible
basis, the decision would not have been made/act would
not have been done.
d. In short, the ct requires:
(1) Prove intent through direct or circumstantial
(a) numbers about the impact/effect of the law—e.g.
stark numbers of yick wo
(2)Must be a motivating factor in the decision

E. The State Action Doctrine As a Limit on the Judicial

Power to Address Racial Discrimination
1. EPC is only implicated when the state makes a
a. Bill of Rights is subject to the state action doctrine.
(1)Applies to state & local govt b/c of the incorporation
b. Ct struggles w/ public v. private distinction in the
Civil Rights cases. In general, state means state.
Private actor can only be treated under the 14th A
unless a very close relationship w/ the state can be
shown. Three instances:
(1) Private land but public functions (Marsh v.
Alabama: Company town case.) Private company
discharging traditionally public functions is not
immune from having to provide equal protection.
(2) State encourages private discrimination
(Shelley v. Kraemer: Racial covenant preventing
black families in a housing project.) By asking the
cts to enforce/tolerate this private discrimination is
state action—even if the state does not initiate the
decision to discriminate.
(a) This is problematic b/c judges act all the time &
does not necessarily mean that anything a judge
signed off on is state action
(b) Ct has generally limited or ignored shelley
(3) State and private acts entangled (Wilmington
Parking garage: City garage which opens on the
street level to businesses. One of the restaurants
refuses to serve blacks. Ct: Although the business
was a private restaurant, there was so much
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intertwining with the city that it was considered a
state action. Building’s purpose was to provide
parking to the public)
(a) Need a high degree of entanglement
2. Edmundson v. Leesville Concrete Co. (1991): Federal
trial during voir dire. Δ, a private company, exercises
preemptory strikes to exclude blacks from the jury
(employment discrimination case). Held: The attorney is
not completely a private actor b/c he has the assistance
from the government. Govt facilitates the jury and trial
system + trials by jury are a traditional government
a. Justice Kennedy’s State Action Edmonson
(1)Was the Constitutional deprivation the result of the
exercise of a right/privilege w/ its source in state
authority? (here, yes, only have rt of preemptories if
in a court)
(2)Can a private party fairly be described as a state
(a) Does it rely on government aid/benefits?
(b) Is it a traditional governmental function? (marsh)
(c) Do incidents of governmental authority uniquely
aggravate the injury?
3. NB: Should still press the Constitutional issue when there is
a statute that could get the plaintiff a finding of
discrimination—better damages for Constitutional violation.
Also, statutes are designed to prevent excessive or
punitive damages.

F. Affirmative Action
1. Definition: Government program that uses a “suspect”
classification for affirmative/postive/benign
2. Controversy: Benign racial classification or reverse
a. 2 approaches
(1)“Race neutrality”—strong presumption that race is
never relevant to government decision-making
(2)“Discrete and insular minority”—government might
sometimes have legitimate reasons to consider race,
but not when the group disadvantaged by the
classification is a racial minority
b. Benign
(1)Justice Thomas: Govt affirmative action programs
perpetuate a sense of racial inferiority. Does more
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harm than good b/c saying that the group needs help
in order to succeed
c. Discrimination: Since EP is a personal right, is there
discrimination against an individual if allowing a
previously disadvantaged individual over them?
d. HOW? Even if level of scrutiny is determined, how to do
(1)How much deference to give to government body
(e.g. school, city council, etc.)?
(2)The more deference given to the govt body, higher
assumption that they are doing the right thing.
3. Level of scrutiny: STRICT
a. Classifications based on race or ancestry are always
4. UC Regents v. Bakke (1978): UCDMC reserves 16 of its
100 spots for members of a disadvantaged group. Bakke
argues that he would’ve been admitted if not for the quota.
S.Ct. rules: 4 (brennan four); 1 (powell); 4 (statutory four)
a. Brennan four: Quota is ok b/c this is to remedy past
(1)Applies midlevel/intermediate levels of scrutiny (less
“fit” than necessity)
b. Powell: Not ok, but applies strict scrutiny. Diversity is
ok as a compelling state interest, but a bad “fit.”
(1)Quotas/numbers are bad. Does not assess the
quality of the non-minorities v. the “16”
(2)Numbers are too rigid that they become irrational.
c. Statutory four: Quota not ok, but on statutory grounds—
not constitutional grounds
5. General principles
a. Deference issue: The lower level of govt doing the
program, the more likely to strike the program. Ct is
likely to defer to Congress, e.g.:
(1)State/Local govt programs—struck as
i) Bakke (medical school)
ii) Wygant (CBA agreement where minority
teachers were the last to be laid-off)
iii) Croson (city of richmond must contract at
least 30% of dollar amount to minority
(2)Federal programs—upheld
i) Fullilove (fed. govt funds require that 10% of
funds to local govts must be spent on
minority businesses)
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ii) Metro (fed. race-based preferences for
increasing minority ownership of TV and
radio stations)
iii) Adarand (preference of a minority
construction company in road project)
b. The more the methodology is strictly numbers, the more
likely it will be struck. Ct uncomfortable w/ baldness
of pure numbers (quota, ## or %)
(1)But…ct favors flexible criteria.
(2)“Disadvantage” can be taken into account, but
economic or social criteria is race-neutral.
(a) May also have parallels that certain races are
considered disadvantaged, but is not purely race-
(3) e.g. bollinger: Not universally bad to take race into
account, but can’t have rigid pidgenholing of this
c. Court prefers
(1)Race-neutral means
(2)Narrow-tailoring—Need to make a “fit”
(3)Under/Overinclusive Problem
(a) e.g. Overinclusive benefits more ppl than it means
to be benefitted
d. What are the sufficient interests?
(1) Until Bollinger, Powell in bakke was the only one to
say that diversity was a compelling govt interest
e. Complicating Factors
(1) “Majority minority” –e.g. Croson: Richmond City
Council sets 30% of city business for minority
owners, but a majority of the city council = black. Ct
sees this as “suspect”
(2) “Racial politics”—e.g. Predominantly African-
American city counsel is giving preference to this
group (i.e. african-american construction companies).
Appears neutral, but race-based effects
(3) Proxy—When advantage one group, may
disadvantage another
(4) Group v. individual preference
6. Grutter v. Bollinger (2003): Univ. of Michigan law school
has an affirmative action program set up that attempts to
achieve a critical mass in its student body. Grutter, a
white female w/ 3.85 GPA + 161 LSAT. Denied admission,
but is in the “iffy” category.
a. Level of scrutiny: STRICT
(1)This is a race-based classification
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(2)Strict scrutiny whether purpose of program is
affirmative or negative
(3)Ct challenges “strict in theory, fatal in fact”
b. State government actor = public law school
c. State interest: Diversity w/in the student body
(1)Academic freedom: school as a “marketplace of
(a) This differs from UCDMC—where med school was
admitting students to return to the
underrepresented communities and serve them
(b)Deference to the public officials (i.e. law school
admissions committee)—They best understand
how best to obtain diversity of ideas
d. Thomas’ (dissent): Classifications are not benign.
(1)Fundamental premise is wrong—that programs bring
ppl up instead of bringing them down. Programs
perpetuate notion that racial minorities are inferior
(2)Narrow tailoring question is problematic—Umich did
not adequately exhaust all race-neutral
(a) Lottery idea
(3)Questions state interest in having an elite law school
e. Analysis
(1)Changes in this case:
(a) Increasing deference
(b)Strict scrutiny is NOT FATAL
(c) Diversity IS a compelling factor to ensure the free
exchange of ideas in the classroom
(2)Limitations of this holding:
(a) Does linking this situation to academic freedom
limit extending the need to diversity to civil
service and other areas of government?
(b)How far can “diversity” be pushed from the
academic setting?
f. Analytical Outline
(1) Treatment of Suspect Classifications
If classification is suspect, either:
- on its face, or
- by Yick Wo facially neutral classification

(2) Then strict scrutiny applies, even if

classification seems to benefit traditionally
disadvantaged group; i.e. whether state action
is negative or affirmative
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[assumption: this applies beyond racial

(3) What is strict scrutiny?

Suspect classifications are subject to the most
exacting scrutiny; i.e. they must be:
- “necessary” to accomplishing
- “compelling governmental interest”

In context:
“Compelling governmental interest” =
“pressing public necessity”
(a) Yes:
i) National security/stop violence
ii) Correct govt’s own, specific acts of
past discrimination—i.e. Croson: City of
Richmond itself is not responsible for the
absence of black construction ks v. school
segregation cases where school bd itself is
responsible, so ct will permit it to
compensate for its own wrongdoing.
Likewise, cannot act on behalf of the rest of
the world—e.g. Freeman v. Pitts, need to
trace segregation to something the school
did—not housing patterns
iii) Promote diversity

(b) No:
i) Forment racial antagonism
ii) Perpetuate stereotypes
iii) Remedy societal discrimination
iv) Provide role models—e.g. Wiegand, laying
off teachers but retain teachers of color to
keep these teachers as role models. Ct says
no b/c lack of teachers of color is not the
school district’s fault

(4) the “NECESSARY” [fit]

(a) Narrowly tailored—use least restrictive
means to achieve purpose
i) must show race-neutral alternatives
considered, but will not achieve
interest--e.g. lower standards to keep
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ii) detailed findings, time limits preferred
—i.e. want detailed findings w/r/t why this is
the best way to do things + time limits to
give these race-based programs a
foreseeable end
iii) quotas, rigid numbers disfavored—e.g.
need flexible admissions program

V. Gender Discrimination and Other Equal Protection

A. Sex-and Gender-Based Discrimination
1. Women outside the Constitution: The Traditional
Jurisprudence of Difference
a. Women and men are biologically and inherently
different than men, and the law should treat them
differently—deference to nature
(1)Challenged by the Seneca Falls Declaration (1848):
Pushes the idea of sameness. The only thing holding
women down = laws
(2) In re Bradwell: Myra passes oral bar exam, and is
endorsed by judges for admission. Bar refuses her
admission b/c she is a married woman—violation of
natural law to be available to help her husband
(a) S.Ct: Endorses Illinois’ decision to refuse her a
i) Rationale: Natural law is the domestic
sphere for womanhood. Unmarried women
in business are an exception
b. Debate over whether EPC extends to classifications
other than race
(1) Originalist argument: 13/14th A was in response to
slavery—indicates that race is implicated. Only thing
framers had in mind = slaves
(2) Textualist argument: Allows for broad application of
the EPC. If framers wanted to limit this language
(“to any person w/in its jx…”) to freed slaves only,
they would have put that in the language.
(3) Post-Ratification, S.Ct stretches EPC beyond slaves
and their descendants (i.e. to Chinese immigrants,
(i.e. to Chinese immigrants, Yick Wo). Factors:
(a) History of discrimination
(b) Immutable (can’t be changed and “accident” of
(c) “Gross/inaccurate stereotypes” (i.e. all
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(d) “Discrete and insular minority” &
“politically powerless” (discrete = set apart,
highly visible; insular = group isolated by itself)
(e) Alienage (non-citizenship or ability to become a
i) This breaks down the notion that high
scrutiny is only given to those cases where
discrimination is based on the accident of
birth. Thus, immutability may not be the
best way to distinguish a classification.
(4)Fitting in women
(a) History of discriminatory laws w/ differential
(b)Immutability—yes @ time of these cases
(c) Gross stereotypes—laws based on stereotypes
that women were weaker and less capable
(d)Discrete/insular/highly visible—tougher here b/c
women are not isolated from society & not a

2. The Jurisprudence of Equal Treatment and Heightened

Scrutiny of Sex-Based Distinctions
a. From Rational Basis to Intermediate Scrutiny (and
Beyond?) in Gender Cases
(1) Rational Basis → Reed v. Reed (1971): Bro and sis—
which one gets to administer the estate. Idaho
statute: tie goes to the male.
(a) Held: Violation of the EPC
(b)Ct uses rational basis scrutiny & rejects valid state
interest (administrative convenience) as arbitrary
(2) Strict Scrutiny → Frontiero v. Richardson (1973):
Differing benefits for serviceman by sex. Justification
is for administrative convenience based on the idea
that most men are breadwinners.
(a) Brennan (plurality): Tries to put sex as a strict
scrutiny classification by comparing women to
i) Women are politically powerless
ii) Powell/Burger/Blackmun concur: Agree w/
result but reject notion of heightened
(b)State may NEVER justify discrimination on
administrative convenience
i) is the state’s burden to show the “fit” is
correct; that regulation is justified
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(3) Intermediate Scrutiny → Craig v. Boren (1976): Men
under 21 could not buy 3.2% beer; women can buy
beer after 18. State justification: traffic safety [nb:
health/safety/welfare is not always a compelling
state interest]
(a) Held: Violation of EPC. “Fit” is not narrowly
tailored + purpose of law is not related to the
means. Only 2% more males than females
arrested for drunk driving. Not enough to justify
gender distinction.
i) Also problematic b/c this is based on gross
stereotypes that this is about allowing
young girls to marry and drink w/ their
(b)Alternatives: Stiffen penalties, more cops,
(c) Under/overinclusiveness → bad fit or congruence
(d)Stevens/Rehnquist: Setting up tests of levels of
scrutiny is ill-advised. Beginning to invite judicial

(4)Applying Intermediate/Middle-Tier Scrutiny

Classification Fit Govt’s Interest
Mid-level Substantial Important

(a) Miss. Univ. for Women v. Hogan (1982): [Public]

nursing school for women. Man tries to apply, is
denied admission and sues. State’s justification-
compensation for workplace discrimination
against women → (unsupported since 90% of
state’s nurses were female)
i) Held: Violates EPC under middle-tier level of
ii) Perverse result: By applying mid-level
scrutiny, it is actually easier to help women
than to help race discrimination since a
lower burden on the state to show fit and
govt interest.
(b) US v. Virginia (1996): Virginia Military Institute
(VMI) trains men to be “citizen-soldiers.” State
interest: leadership, high sense of public/military
service. Ct. App. found this violated EP and
ordered VMI to either admit women or create a
comparable institution for women. All-women’s
liberal arts college created.
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i) Held: State has not provided the court with
“exceedingly persuasive justification”.
(A)Nothing to indicate that only men are
deserving of soldier training. Not
necessarily advancing the state’s goal by
excluding women
(B)Notion that hazing/adversarial training
won’t work w/ women present is based
on out-moded stereotypes
→ Blanket prohibition is using women as
a proxy—need a tighter fit.
ii) Remedy also insufficient. Remedial
program is NOT equal. (A) VWIL does not
offer adversative training.
(B) Also consider tangible/intangible factors
such as facilities, faculty numbers,
alumni network access
Midlevel classification is subject to
heightened scrutiny; i.e., must be:
i) → substantially related to
ii) → “important” government interest

Whether affirmative or negative act

Remedies short of integration must provide

substantial equality re: tangible and
intangible goods


i) exceedingly persuasive
ii) genuine, not invented post hoc to
respond to litigation (look @ moments
before the situation is made)
iii) not reliant on overbroad
generalizations/outdated stereotypes
re: difference

Specific important governmental interests

• Compensate for particular economic
• Promote job opportunity
• Advance development of individuals
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• Create or prolong inferiority

b. Classifications That Have a Disparate Impact upon

(1) Gedulig v. Aiello (1974): CA disability insurance
program paid benefits to persons temporarily
disabled from work, but excludes pregnancy. π
argues: gender-based classification. Govt interest: $
$, since large number of women will get pregnant.
(a) Held: Classification is really about pregnant v.
non-pregnant people, NOT sex-based
(b)Only needs rational basis scrutiny
(c) No showing of invidious intent to discriminate
(2) Personnel Administrator of Mass v. Feeney (1979):
Mass law has a preference to give extra points to
veterans. π, a woman, tests high on civil service, but
is bumped down the scale in deference to veterans.
State actor: dental examiner.
(a) Held: Survives rational basis scrutiny: studies
show that veterans were having trouble getting
jobs after service.
(b) Classification is veterans v. non-veterans
(c) Fit: reasonable
(d)Also, could be a national security interest in giving
benefits to veterans
(3)Analysis of above cases: Categories (pregnancy,
veteran status) have strong sex-based correlation,
but court chooses not to see it as sex-based. Facially
neutral classifications, with no discriminatory
purpose against women.


(a) facially suspect classification OR
(b) facially neutral, but:

π shows intent “a” motive; i.e. “b/c of” such


• disproportionate impact (e.g. Yick Wo)
• clear pattern otherwise unexplainable
(e.g. why only chinese launderers not qualifying
for a permit)
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• sequence of events to decision/act (e.g.
history of hostility towards chinese)
• procedure, substance departure (e.g.
suspension of procedures, decisions behind closed
• statements at decisionmaking (e.g. one
person saying the ‘real’ reason, can suspect that
other decision makers are saying the same thing)

→ at middle-tier scrutiny, court is less suspicious and

more willing to accept the facial neutrality

c. Critiques of Abstract Equality and the Emergence

of a Jurisprudence of Difference
(1)Idea: Sex must be taken into account when the state
makes its decisions
(a) Based on the notion that EPC requires substantive
i) Long-rooted history of subordination of
women and inherent differences b/t the
ii) Only remedy is through state action in favor
of women
(2) Bray v. Alexandria Women’s Health Clinic (1993):
Bray, Δ, is in a private anti-abortion group who tried
to stop women from traveling interstate to abortion
clinics. Clinic claims deprivation of their civil rights
[42 USC § 1985(3): “If two or more persons conspire
or go in disguise on the highway…for the purpose of
depriving…any person of the equal protection of the
(a) Ct: Classification is women seeking abortion v.
everybody else—no sex-based discrimination
(b)No evidence that Δ discriminates against all
(3) US v. Morrison (2000): Female student raped by
two football players. Had a school hearing and one
player was suspended for two semesters, which was
later repealed. Victim/US sue the university and Δs
under the federal Violence Against Women Act
(VAWA), which gives a civil remedy for a crime of
violence motivated by gender hatred.
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(a) Held: Statute is unconstitutional b/c this is an
improper application of 14th A—i.e. 14th A does
not regulate “private” action
(b)No state action –victim could have only sued the
state officials who failed to punish the guy—not
the guy
(c) Counter: In enacting the VAWA, Cong. was
“enforcing” the EPC b/c it was compensating
defaults in state protection of women against
i) But the inability of states to protect women
against private violence does not create
additional congressional authority
B. “Other” Suspicious Classifications
1. How to determine what classification applies
a. Factors
(1)Like race
(3)Accident of Birth
(a) Religion usually included here
(4)Discrete minority
(a) Set apart in a visible sense
(5)Insular minority
(a) Isolated from the dominant culture—like a
linguistic minority
(6)Past discrimination
(7)Gross stereotypes
(a) Not being treated as an individual
(8)Irrational prejudices
(a) That these ppl deserve this classification
(9)Politically powerless
2. Alienage
a. Different treatment for legal noncitizens (v. legal
b. Strict scrutiny applies unless a national interest—then
rational basis
(1)Federal interest → rational basis scrutiny
(a) Presumption that the feds are protecting our
border, thus, national security is implicated
(2)State/local interest → strict scrutiny
(a) e.g. A state law requiring US citizenship for
welfare benefits, civil service jobs, or a license to
practice law will be struck down b/c no compelling
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(b) Exception: If a law discriminates against alien
participation in the functioning of the state
government, then apply rational basis
3. Birth to Unmarried Parents
a. Ct inconsistent as to what level of scrutiny
b. Accident of birth → intermediate level?
4. Age
a. ALWAYS rational basis
b. But ct is inconsistent
5. Wealth
a. Rodriguez: Tx school district where the quality of public
education varies by neighborhood/tax base. Held: No
constitutional violation
(1)Wealth is not a fundamental right
(2) Ct. also says that education is not a fundamental
right (against Brown??)
b. MLB: Child taken from mother, she loses @ trial. Cannot
afford to appeal b/c can’t afford the transcript
(1) Held: Heightened scrutiny here
(2)Wealth is conjoined w/ a right to have a family
(a) Classification alone is ordinary rational basis
(b)BUT…sometimes wealth classification will be
unconstitutional if wealth is a cognizable claim
6. Physical or Mental Disability
a. City of Cleburne (1985): P: Cleburne Living Center, a
group home for the developmentally disabled. D: City
of Cleburne. Dispute: A requirement in the zoning regs
that require a special use permit for the “feeble-
minded.” Group home permit denied b/c neighbors
didn’t want it, fear jr. high students would harass
occupants, risk of flood, size of home and # of
(1)Here, “semi-suspect classification”—not quite the
next level
(a) Present here: immutable, accident of birth, past
discrimination, gross stereotypes, irrational
(b)Not necessarily present: discrete (depends on the
condition), Insular (usually disbursed throughout
community, and later become insular), politically
powerless (but direct participation is not
necessary as demonstrated via fed/state remedial
(2)Strange result if only two levels of scrutiny—would
always depend on the classification to see whether
govt wins or loses
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(a) Would probably survive rational basis review.
Zoning is a governmental concern, and the
method is reasonable (i.e. limiting the ## of ppl in
certain areas)
(b)Would probably not survive strict scrutiny. No
compelling interest, and there are alternatives to
accomplish this (i.e. not necessary).
(3)Ct admits that the trait justifies differential
treatment, but hesitates on the heightened scrutiny
b/c of the “passing” phenomenon (i.e. Plessey)—idea
that you can’t generalize what this group will look
(a) Policy implications: fears a slippery slope—that
this group will become so elastic that the
characteristic doesn’t always play out to justify
the classification
(b)Does not want to invite litigation
(c) Also, this group already has political power →
should NOT want higher scrutiny
(4) Wrong result if this was only rational basis (i.e. city
would lose)…so court engages in a review of the
city’s justifications
(a) Discounts flood plain argument
(b)Neighbors—irrational prejudice
(c) Junior high—like cooper v. aaron, cannot give in to
mobs; must protect ppl & punish the wrongdoers
(d)Size-since other homes let into the neighborhood,
this is based on prejudice
not suspect enough for middle tier scrutiny, but
still of concern [mentally retarded, post-lawrence,
sexual orientation?] will not satisfy the EPC unless
→ demonstrably reasonably related to
→ real & legitimate govt purpose

Court will not automatically defer to the

legislature—less deference to the legislative
(1) In reality, discourse is like rational basis—but the
result is no longer guaranteed
7. Mingling Equal Protection and Fundamental Rights
a. Skinner v. Oklahoma (1942): Habeas proceeding.
Skinner in jail. Williamson (custodian/warden). Okla
steps in on behalf of Williamson. Skinner convicted of
robbery w/ firearms (twice) and stealing chickens. State
wants to sterilize him under Okla state law which
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authorizes sterilization for criminals of a moral
turpitude. Several constitutional issues at question
(1)Ct reads this as an EPC case. Procreation/marriage =
fundamental right
(2)Also arbitrary distinction b/t the crimes that qualify
for sterilization (i.e. larceny v. embezzlements)
(a) No equal protection of the law b/c of irrational
differentiation of crimes that qualify for
sterilization AND what is at stake (i.e. a
fundamental right)
(b) e.g. of judicial activism
i) Ct takes the wealth classification and melds
it w/ the notion of fundamental rights so
that the statute can be overturned.
(3) Arises out of Buck v. Bell—Compulsory sterilizations
for the developmentally disabled. Woman has a
child out of wedlock, and is thought to be
developmentally disabled and is sterilized.
(a) Holmes—judicial restraint
8. Sexual Orientation
a. Federal Law
(1) Griswold v. Conn (1965): Prosecution of a physician
for supplying contraceptives to a married couple.
Held: Conviction overturned b/c invades the privacy
of the marital bed (i.e. the decision of a married
couple to have sex to procreate or not)
(a) Begins the notion that family life, intimacy, is not
one that the govt ought to intrude on
(2) Bowers v. Hardwick (1986): Georgia statute declaring
sodomy—for homosexuals OR hetereosexuals--
illegal. P conditionally charged and charges brought,
but prosecution dropped. P and cop had a history. P
files declaratory judgment action to determine the
constitutionality of the law.
(a) Held: No fundamental right to engage in sodomy
(3) Romers v. Evans (1996): “Colorado for Family
Values” wants a constitutional amendment that
overturns local ordinances protecting against
discrimination against homosexuals. [city jobs
prohibit employment discrimination + zoning
prohibits discrimination against families, race,
gender, homosexuality] Proposed amendment was
to respect other citizens’ freedom of association, and
the liberties of landlords/Ers who have objections to
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(a) Held: Amendment violates the EPC
(b)[EPC] forbids govt law/policy by which
homosexual/lesbian/bisexual orientation, conduct,
practices, relationships are the basis by which
persons may have or claim minority or protected
status, quota preferences, or discrimination.
(c) RATIONAL BASIS. No legitimate interests
i) Indicates that S.Ct is starting to think of
homosexuals differently than other groups
(e.g. people who read comic books)
ii) But like Clegburne, apply rational basis and
the govt loses
iii) Scalia’s dissent: Moral judgments are made
all the time (e.g. in criminalizing murder,
prostitution), and are based in religion.
Should only talk about rational basis when
the right at issue is NOT fundamental.
a) Bowers indicates that homosexuality ≠
fundamental right
(d)HYPO: What’s next? If someone is gay, can they
remain in the military?
i) On a Romer analysis, no real & legitimate
govt purpose. BUT, legitimate govt interest
in “national security”
(4) Lawrence v. Texas (2002): Tx statute punishes same-
sex sodomy.
(a) EPC argument:
i) Classification—is it constitutional?
ii) Govt interest—can govt regulate morality?
If so, to what extent? Is morality a
legitimate govt purpose?
a) Ct: agrees that in the abstract, it is ok for
govt to legislate morality
b) BUT…can’t have as the ONLY interest =
morals IF the result creates an
underclass and singles out a single group
(b)DPC argument: This statute isn’t enforced enough;
thus, invites arbitrary behavior by govt officials.
Offends low-level DPC.
i) Having the statute on the books makes it
available for law enforcement to harass
behavior they don’t like
ii) Essentially an invitation to single out an
individual for prosecution
(c) Debate over whether to overrule Bowers
i) No
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a) O’Connor: save it for later. Bases this on
stare decisis and the need for
b) Scalia: Also concerned w/ stare decisis.
Also discusses the implications for Roe v.
Wade since Casey was decided based on
stare decisis from Roe.
Also pissed b/c majority never declares
this a fundamental right
All governmental interest in legislating
morality is in doubt
ii) Majority—YES
a) Looks to Chief Justice Burger in Bowers:
This is deeply rooted in civilized people
b) Kennedy’s majority opinion: refutes that
this behavior is rooted in (1) history; (2)
values of western civilization---looks to
intl norms
aa) This referral to international
jurisprudence may return in the
Guantanamo cases.
bb) Also is a new bill proposal which
would prevent foreign law in S.Ct. unless
the law is referring to the original
(d) Limits to this opinion. Doesn’t involve non-
commercial prostitution, minors, non-consenting
i) b/c of these limits, ppl then turn to the state
courts and state constitutions to give more
b. State Constitutional Treatment
(a) Massachusettes constitution → aspirational
document. “Happiness” is a constitutionalized
(b)Challenge to statute (?): “No law can limit
marriage to a man and a woman.”
(c) Mass S.Ct: Appears to apply RATIONAL BASIS w/
teeth. Takes a hard look @ govt interest. Refutes
alleged govt interest
i) Desire to create favorable setting for
procreation. Mass S. Ct: Marriage licenses
sole purpose is not procreation [refutes
catholic teaching that sex is only to
procreate]. Civil marriage is secular
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ii) Best interests of the child to have two
parents of opposite sex. But Mass allows for
same-sex foster parenting/adoption, single-
parenting, divorced parenting. Invalid
classification b/c marriage does not advance
the interests of a two parent family
iii) $$--preserving scarce state and private
financial resources. Mass S.Ct: No, and civil
unions are not enough b/c don’t confer the
intangible benefits of “marriage.”
c. Interplay between Federal and State Constitutional
(1)SF/Mayor Gavin Newsome’s Actions
(a) 2/10/04: sends a letter to the city clerk to issue
marriage certificates to same-sex couples. The
first couple is married two days later.
(b)Even though CA initiative states, “Only a marriage
b/t a man and a woman is valid and recognized in
i) AG’s job is to enforce properly passed laws
in CA
(c) SF City’s argument: CA constitutional law has an
EPC + CA case law gives higher scrutiny w/
discrimination against homosexuals
i) CA Constitution. § 1, sec. 1: Inalienable
rights…aspirational. “Happiness + privacy”
are constitutionalized
(d)But procedural complaint: Executive officer is
taking the right to interpret the constitution
i) e.g. Cooper v. Aaron: Gov’r Faubus blocks
school children from letting kids into school
b/c he takes the initiative to interpret the
law—contrary to the S.Ct
ii) Newsome argues: Distinct b/c there has
been no federal or state court decision here
iii) Is this like Pres. Bush’s interpretation on the
enemy combatants case??
a) Is the executive beginning to assert
constitutional interpretation that
circumvents the courts??
(2)Federalizing this issue
(a) Do not have 5 judges to recognize gay
i) Scalia: No fundamental right or national
consensus. No c/l history to have this right.
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ii) Also may look @ trend amongst the states
to see whether the right is now recognized
as a fundamental right.
(b)re: Federal constitutional amendment
i) Full faith and credit clause argument:
judgment in one state must be honored in
another state
ii) New constitutional amendment opposing
gay marriage?
a) Needs Congressional approval + each
state’s ratification w/ a supermajority


Strict scrutiny “Suspect” Necessary Compelling
Middle Tier Midlevel Substantial Important
Rational Basis Maybe suspect Demonstrably Real &
w/ Teeth reasonable legitimate
Rational Basis Not suspect Any reasonable Any legitimate

First Amendment—Free Speech

I. Free Speech and Competing Values

A. Revolution: Immediate history to govt backlash
B. Advent of the printing press → ability to mass produce verbal
1. Concern b/c could reach more people faster
2. Also can’t control who is getting the ideas or dissemination
of info
a. Govt sees this as a threat to their authority
(1) Begins issuing licenses to those who are allowed to
(2) Also uses censors, govt officials who controlled what
was distributed
C. Blackstone: having censored info, is a violation of the c/l—i.e.
it is wrong to punish after the fact [or prior]
1. Punishing speech prior to the fact—Today, little room in
interpretation of this amendment for pre-restraint
a. e.g. Pentagon papers case: govt tried to w/hold
publication on the Vietnam War
b. e.g. Progressive Magazine: trying to publish a recipe for
hydrogen bomb.
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2. Punishing speech after the fact—i.e. publication goes out
and then dole out the punishment
a. Flag burning/cross burning
b. Libel/slander
c. Obscenity/Child porn
D. Basics
1. Text: “Congress shall make no law…abridging the freedom
of speech.”
a. Rationale: Speech contains or provokes ideas that can
lead to social or political effect, including self-
governance, discovering the truth/ideas, advancing
autonomy, promoting tolerance.
a. Substantive rights includes everything in the 1st A
(1)Religion also included in the Amendment
(2)Amendment is about individual space and individual
b. “No law” goes to the states
c. “Abridge” is not an absolute prohibition
3. Free speech rules apply to conduct when the conduct has
major expressive component

II. Regulation of Harmful Messages

A. Illegal Advocacy
1. Illegal Advocacy = Words that encourage others to break
the law
2. Evolution of the law
a. Learned Hand’s Masses Test
1 (1) Govt may make a crime of direct incitement to violent
resistance to the law
b. Clear and Present Danger Test:--Justice Holmes
(1) Govt may make it a crime to speak words used in
circumstances and of nature to create clear and
present danger—i.e. speech will bring about
preventative substantive evils
(2) CLEAR = degree
(3) DANGER = proximity in time
c. Thus, tension b/t statists and libertarians---how far to
tolerate dissent?
3. Brandenburg v. Ohio: OH criminal syndicalism statute.
[It is a crime to engage in: (a) advocating
duty/necessity/propriety of a crime/sabotage/violence/
terrorism to accomplish industrial or political reform AND
(b) voluntarily assembling w/ a group formed to teach
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criminal syndicalism] Here, Δ, a KKK leader, convicted.
Evidence was KKK events filmed on TV, where leader
advocated, “Let’s march and destroy the groups we hate.
Let’s take revenge…there ‘might’ be action taken.” Held:
Statute unconstitutional b/c focuses on advocacy, not the
incitement to imminent lawless action.
a. Ct attempts to establish a BLR for predictability
(1)1st A law is always concerned about the CHILLING
EFFECT—i.e. when one can’t tell is the speech is
protected, the danger that ppl will err on the side of
(a) This burdens the free market place of ideas
(2)Thus, here, applies message that free speech = free
b. Govt MAY make it a crime to engage in advocacy
that is:
(1) ‘directed to incite” or produce imminent
lawless action; and
(2) likely to incite or produce such action
(3)Thus, need to show proximity (danger) and degree
(clear). Would be tough to prove px cause.
c. Criminalizing “mere abstract advocacy” unrelated to
any tendency to produce forcible action, violates the
14th A.
d. 3d party at play? Here, not action directed at the state.
KKK is attacking society’s elements
e. Also, does this implicate the EPC? i.e. individual liberty
v. govt security OR individual liberty v. individual liberty
of the victim
4. ICTR & prosecution for “incitement to genocide”--as a
a. Prosecutor v. Ruggiu: Δ, Ruggiu, Belgian. Δ is a radio
broadcaster in Rwanda. never killed anyone or gave a
direct order to kill, but broadcasted, “go to work” and
“have a good time killing inyenzi (cockroaches).” Ct
accepts his plea of guilty for (1) incitement to genocide
and (2) persecution as his crime against humanity.
(1)Legal std for incitement to genocide
(a) US: Direct and public incite to commit genocide
(b) ICTR: Crime to directly and publicly commit
genocide AND specific intent as the genocidaire
(i.e. the person doing the killing). Also, does not
matter if it produces the result.
i) This would not work in the US under
Brandenburg. Needs to be directed to incite
or produce imminent lawless action and is
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likely to produce action. Under
Brandenburg, if no result → just mere
(2)Is this conviction proper?
(a) Possibly can be ok w/ result, even if not ok w/ the
(b) Clear = “direct” incitement to violence
i) Evid: “Go to work” = orders to kill;
Cockroach = Tutsi; Show common
knowledge of what these phrases meant
(c) Present danger = is the conduct enough to show
present danger?
i) Context—the existence of lawlessness, fact-
specific. History of ethnic strife, only two
radio stns in the entire country + no tv;
Also, easy to mistake this broadcast as the
ii) Here, no free marketplace of ideas. Thus,
people are more susceptible to messages
b. International courts don’t usually wait until the threat
becomes imminent b/c of the history of the Holocaust.
Also belief that danger is always present—need to
prevent hate acts
B. Thus, to succeed against Brandenburg, argue the FACTS. The
other side’s argument is basically, “oh, come on…”

III. Obscenity and Indecent Speech

A. In general, obscenity is not protected.
1. BUT…all sexually explicit material ≠ obscene
2. Distinction b/t pornography and obscenity (unless child
porn involved)
a. Porn thought to have social value in sex education;
medical journals, literary/artistic impression
b. Ct struggles w/ how to define obscenity
(1) e.g. Nudity alone ≠ obscene
3. Ct has different levels of tolerance for 1st A regulation
depending on the penalty. e.g. criminal prosecution or
4. Chaplinsky v. NH (1942): 1st A is NOT ABSOLUTE. Is
constitutional to prevent or punish “well-defined, narrowly
limited classes of speech.”
a. e.g. Not protected: “the profane,” “libelous speech,”
“insulting or fighting words,” “Lewd and obscene”
b. Rationale: Not an essential part of the exposition of
ideas. That speech has such slight social value as a
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step to the truth that the benefit is clearly outweighed
by social interest in order and morality.
c. Post-1942: See a shift in definitions. Also a challenge to
whether the 1st A is only about the free marketplace of
B. Miller v. CA (1973): Miller producing pamphlet advertising
“dirty” books and videos. Arrested under CA penal code
which makes it a misdemeanor to knowingly distribute
obscene material.
1. Ct tries to define obscenity b/c due process reasons (need
“fair notice” of what’s criminal and not), and need to
decide if ideas have value (do not want to inhibit ppl if
there is value)
2. Holding: Conviction for a crime is ok IF
a. The average person, applying contemporary
community stds, would find that the work, taken
as a whole, appeals to PRURIENT CHARACTER
(1)Less protection for booksellers b/c applying a
community (not a national) std. Since those rural
communities were the only ones prosecuting for this
anyway, with a national std they are forced to use
more liberal stds
(2)More protection to booksellers b/c taking the work as
a whole
(3)Prurient = response needs to be unusual, inordinate
or perverted
b. Work depicts/describes, in patently offensive
way, sexual conduct specifically defined by
applicable state law, and
c. Work lacks SLAPS (serious, literary, artistic, political,
or scientific value)
3. Thus, a pornographer could avoid this test by adding
articles to the mix (e.g. Cosmo, Playboy)
C. Miller test applies to sellers and buyers
1. Paris Adult Theatre I v. Slaton (1973): About the right to
purchase obscene materials. Held: Need for autonomy and
privacy DOES NOT allow you to purchase these materials.
1st A does not protect the purchase of obscene materials.
2. BUT…Can’t prosecute for the possess of obscene materials
if they are found in a private home
a. Stanley v. Georgia (1969): Police searching home for
gambling stuff and find obscene/dirty videos in the
home. Prosecuted for possession of videos. Held:
Unconstitutional. Individuals have the right to do
whatever in their own private space
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(1)This implicates the personal autonomy value
[inherent in the 1st A].
(2) Imposes a BALANCE on Chaplinsky
(a) Rationale: Ideas don’t just happen. Notion of
thinking about things, especially in solitude
(b)Sorta like human rights law: concept of the liberty
of conscience
(c) Also like Thurgood Marshall’s idea: We have the
ability to form our own ideas/thoughts/values
before engaging in the marketplace
(d) Like lawrence v. tx: what happens in one’s own
bedroom is not the court’s business.
3. Post-Miller Clarification #1: Personal privacy and
Miller test applies to sellers and buyers.
- no 1st A right to buy obscenity (Paris Adult Theater)
- Govt interest in suppressing crime by regulating
the market for obscenity is weightier than
personal interest in buying the obscenity
1st A does preclude the govt from making
possession of obscenity in one’s own home a crime

D. Child Pornography—Sexually explicit material that involves

in production OR depicts children.
1. Miller: Not all porn is illegal
2. NY v. Ferber (1982): NY statute banning child porn (i.e.
porn involving children as models/actors). Held: upheld
conviction. govt interest: protect children.
a. BALANCING TEST. Here, balance falls in favor of state
(1)1st A values: freedom of expression, liberty of
(2)State interest: Protect children from involvement in
sexual activity; Prevent exploitation in
b. These materials would not be considered obscene under
(1)Thus, this would probably be ok if only adults were
involved here.
3. Ashcroft v. FCC (2002): Virtual child porn by computer
drawings & morphing adults into kids. Held: This is ok.
a. Under Ferber rationale—no support for banning this
porn b/c no actual children used
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(1)But Ferber still permits prosecution for things that
involve children.
(2)Thus, if no child actors then no harm
b. Govt also argues that the state also has an interest b/c
it may excite pedophiles or give them the idea that this
is permissible or enables pedophiles to convince kids
that this is ok behavior
(1)Kennedy: No: there are other ways to lure kids.
(a) In order to allow this test, must pass the
Brandenburg test (imminency of lawless behavior)
(2)Also, no statistics to show that watching this leads to
this behavior
(3)Ct is skeptical of other claims of harm
c. BALANCING TEST—falls on 1st Amendment liberty
4. HYPO: Would the 1st A protect “American Beauty” (movie
where father fantasizes about daughter’s friend; nudity
a. Argument that 1st A does not involve American Beauty
in an attempt to suppress child porn b/c child porn is not
(1)Narrow definition of speech as words spoken or
printed on paper. Thus porn would only be
considered conduct
(a) Message is unknown until you talk it out w/ the
conduct—arguably like burning a draft card,
where you don’t know the meaning
(2)But this argument doesn’t work b/c framers must
have meant a liberal meaning of “speech” and
“press”—i.e. notion that speech is expression
5. Butler v. Regina: Canadian statute bans “obscene
materials.” Δ owns an adult video store. Ct: Affirms
a. Would this happen in the US? No b/c would not pass the
Miller test.
b. Canada concerned w/ the effect of having this stuff—
that it is degrading and dehumanizing to women
(1) Post-Ferber: US S.Ct wants hard and empirical
evidence of the effects.
(2)Here, too hard to generalize women here and prove
E. City of Renton v. Playtime Theaters (1986): Renton, a suburb
of Seattle, passes a zoning ordinance prohibiting adult
theaters w/in 1000 feet of any residence, church, park, school.
Most films shown in adult theaters ≠ obscenity under Miller.
Thus, it is protected speech.
1. Held: Balancing test for speech.
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2. Ct requires argument by the state that their
method/rationale advance a SUBSTANTIAL GOVERNMENT
a. Uses the term “fit/narrow tailoring” = includes a notion
that we need reasonable avenues of communication for
the speech to be expressed.
b. Here, there are reasonable alternatives—i.e. other
physical areas on the map to have these theaters. Does
not matter that the prices of the real estate in those
areas are high—1st A does not require that we give
bargain prices for this—as long as a market exists.
(1)If the reasonable alternative exists, then ct will defer
to it.
(2)This analysis is more lenient than EPC
i) Compare with Cleburn and Croson
ii) Also, Renton based studies on Seattle (very
different community). Ct: Ok. Local findings
are unnecessary.
iii) Ok for let cities choose different methods to
mitigate secondary effects (e.g. Seattles “red
zone” v. Renton’s disbursed design)
3. Ct also attaching levels of scrutiny or a “tiered” approach.
a. CONTENT-BASED: strict scrutiny
b. CONTENT NEUTRAL (i.e. limiting speech for other reason
besides content → secondary effects): intermediate
level of speech
(1)Usually permissive if the regulation goes to the
health/safety/welfare of the state
(2) 1st A & Content Neutral Regulations on
Govt is permitted to regulate IF
- content-neutral speech, i.e. predominant govt
concern is not the suppression of speech, rather goals
unrelated to speech
- if so, considered, “TMP”, not content-based,
(3) Test—looks like intermediate level of scrutiny
Govt permitted to regulate if the law is
- Designed/narrowly tailored to serve a
substantial important govt interest
- Leaves reasonable alternative avenues of

(4) Reasonable Alternatives

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→ Reasonable opportunity to engage in
particular kind of speech w/in governmental
unit (e.g. city)

“Speakers” subject to market like anyone else,

but governmental regulation may not
effectively suppress/greatly restrict access to
lawful speech.

IV. Fighting Words, Captive Audiences, and Offensive Speech

A. The Fighting Words Exception
1. 1st A does not protect “fighting words”; words that
by their very utterance cause a reasonable person
a. inflict injury OR
b. tend to incite immediate breach of peace
2. Cohen v. CA (1971): In LA city courthouse. Δ wears jacket
“Fuck the draft.” Arrested as leaving the courthouse under
CA penal code that prohibits “incitement of peace, by
offensive conduct.”
a. Held: Conviction is unconstitutional. Govt’s case lacks
“particularized & compelling reasons for its actions” (i.e.
little categories of speech that may be suppressed), cf
content based, unprotected speech categories
(1) No evid of intent or tendency to incite
violence/unlawfulness (thus not w/in Chaplinsky or
(2)Not obscenity b/c not sexually explicit or erotic in this
(3)Not defamation or libel (doesn’t hurt any particular
(4)Fighting words—no b/c no one reacts to this
“speech” (except the bailiff). But even then, bailiff
didn’t breach the peace
b. This is not a content neutral statute
(1)Not a TMP restriction—i.e. not limited to the
courthouse only. Statute is too broad.
(2) Harlan: 1st A doesn’t regulate “taste” or “style” –
emotive force of speech matters.
(a) Don’t want the govt to regulate taste b/c may
over-censor a person b/c they may not be able to
discuss something “properly.” Would exclude
them from the discussion
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c. No “captive audience”—presumed presence of unwilling
viewers is no automatic ok to curtail.
(1)Not an intrusion into home
(2)Viewers easily could avert eyes
(3)In the courthouse, can come and go. No fit here.
d. Cohen focus → hearer (i.e. does the speaker’s insult
provoke a reasonable hearer to imminent violence v.
v. Brandenburg focus → speaker (i.e. does the speaker’s
advocacy intentionally provoke hearer to imminent
violence v. others)
3. 1st A and Offensive Speech
Govt may not suppress/punish speech that offends
some, yet does not fall w/in “unprotected” category
Govt MAY regulate some speech in content-neutral
TMP fashion

B. Offensive Speech in the Electronic Media

1. Issue: should the std change when the media is electronic?
a. No: Give speech more room if the concern is w/ whether
the hearer will punch the speaker. Less threat of
imminent violence
b. Yes: TV/radio/internet: More pervasive & tougher to shut
down. Easier to access. Less control for selves—it
comes at you and you can’t change it.
2. Pacifica (1978): George Carlin recorded a monologue
featuring seven dirty words. Pacifica radio plays this.
Father complains to the FCC. Held: FCC can regulate
“indecent speech.”
a. Rationale: Concern of children; Privacy of home (fact
that medium goes into the home, right to decide the
education of your children)….captive audience problem
b. Overlay: Red Lion Broadcasting Co (1969): “fairness
doctrine”—Give equal time to opposing viewpoints on
important political issues.
(1)Rationale: Scarce Resources (i.e. limited numbers of
frequency). Closed market = more room for
(2)Political speech = high priority speech
3. Sable: Cyberspace is like print media. But other concerns
like pop-ups make it like broadcasts
a. Fact-specific—as technology keeps changing
b. The more ability ppl have to stay away—i.e. make
independent decisions—the more this is treated like a
marketplace of ideas
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(1)Under the traditional doctrine, only can be limited by
a “punch in the nose.” But would probably need to
stretch this test to limit speech.
4. hypo: FTC: sex-based spam must have warning. Can the
govt regulate this?
a. State action? Need a govt actor (unless implicating the
13th A)
b. Is it speech or press?
c. Content-based or content neutral?
(1)Content based
(a) If yes, then two questions:
i) Unprotected speech category (i.e. the
state’s interest in regulating dangers of this
speech → compelling [e.g. imminent or
immediate harm from fighting words]. If
yes, then it is ok to sanction
ii) If protected, presume protected and not ok
to sanction
(b)Level of scrutiny: Strict
i) Need compelling interest + narrow tailoring
(2)Content neutral
(a) Level of scrutiny: Midlevel
i) e.g. child porn, focus is on secondary
effects, thus, regs should try to minimize
harmful effects
5. Indecent speech summary
a. Not protected
b. Then, subject to strict scrutiny
c. Exceptions:
(1) TMP regulation
(2) Captive audience
V. Speech with a Government Nexus
A. Public Forum Doctrine
1. Does the govt function as SOVEREIGN or
a. Sovereign: Suppresses, regulates, harmful, low-
value speech in public interest.
→ Then 1st A content-based, content-neutral rules
→ If content based restriction, does it survive
the presumption that the govt can’t regulate
content? Or is it fighting words, obscenity,
b. Proprietor: Govt engaging in activities that
private citizens engage in--e.g. landlord,
educator, employer, patron
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→ Query: Is the govt a private actor, not bound by
the 1st A? Then need to figure out whether the
space is considered a traditional public forum or
(1) Potential 1st A duty of govt as proprietor
(a) 1st A ALWAYS binds the govt
i) Rationale: Govt has monopoly on public
force, thus, is not like a private actor
(b) 1st A NEVER binds the govt
i) Rationale: Govt decides what to
sponsor on its turf
2. Is it a public (i.e. traditional 1st A rules) or non-public
(i.e. govt can act like a private actor) forum?
a. Traditional public forum (streets and parks) AND
intentional/designated / limited public forum (public
theaters, public school, film series)
(2) Regulation must be
(a) Content neutral
i) Narrowly tailored to serve a significant
government interest
ii) TMP regulation is ok
→ regulation need not be the least
restrictive means of accomplishing the goal.
The reg may not burden substantially more
speech than is necessary to further the
significant government interest
iii) Leave open alternative channels of
b. Nonpublic forum
(1)e.g. Airport, military bases, mailboxes
(2) Govt can regulate speech here if rsbl (basically a
rational basis test)
(3)BUT No viewpoint discrimination (usually fatal, strict
(a) e.g. Content → limiting all categories (e.g. all
religious speech, all political speech)
(b)e.g. Viewpoint → Limiting one viewpoint w/in a
category (e.g. prohibiting Christian speech)
3. Federal v. CA rule:
a. Fed rule: If it is private, it is off-limits (even if there is
public stuff going on there or it does a traditional public
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b. CA rule: Unless notice given (i.e. that owner reserves
the right to limit access), must allow ppl on—if a
traditional public function
4. US v. Grace: Woman wants to pick the S.Ct. held: Yes, she
should be allowed to be on the sidewalks. Refutes the
argument that the S.Ct should not be swayed by public
protests—even if listener doesn’t listen, ppl should have
the right to talk.
5. Ward v. Rock Against Racism: Central Park bandshell.
Requires groups to use their sound technician. Rock wants
to do a concert w/ their own sound technician. Held:
Regulation is ok.
a. Viewpoint discrimination argument: some music needs
to be loud to enjoy it (e.g. punk)
b. Ct: This is a content-neutral regulation. Thus, it requires
substantial govt interest, but narrow tailoring. [Ct starts
at intermediate scrutiny, but has elements of strict
(1) re: Narrow tailoring: Is a reasonable alternative
available or a “less restrictive means” ? (differs
from EPC definition of narrow tailoring as a least
restrictive means)
(a) Here, having a city technician is not the least
restrictive means. It is a LESS RESTRICTIVE
MEANS → midlevel scrutiny language.
(b) Least restrictive would mean that rock could bring
its own technician.

B. Unconstitutional Conditions
VI. Symbolic Speech—or Hate Speech?
A. Flag-burning is protected speech under the 1st A
1. Texas v. Johnson (1989): Flag burner convicted under
statute which makes it a misdemeanor to desecrate,
intentionally or knowingly…a state/national flag. Δ burns
the flag in protest, and on-looker is offended and takes the
flag home to bury it.
a. Held: Flag burning is protected speech. Defer to the
marketplace of ideas. Notion that in a free market, the
exchange of ideas leads to the truth. The remedy for
“bad speech” is stimulating more speech into the
(1)Kennedy: 1st A is about having to listen to horrible
(a) Ct fears the chilling effect
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(2)But, govt can regulate, if at some point, the market
becomes so unbalanced that rational speech has no
B. Hate speech (content-based restriction)
1. In general, it does not meet the exceptions to when govt
can regulate…fighting words, obscenity, libel.
a. Comes close to fighting words, but Brandenburg, need
imminent violence
b. If, on the facts, there is an assault or battery, then it will
be easier to prosecute on those charges and not the 1st
(1)But if assault accompanies hate speech, can attach
motivation as hate-related
c. But for policy reasons, probably do not want to wait
until actual violence.
(1)Want to avoid fear, creating a hostile environment
(2)Don’t want the appearance that govt is endorsing the
speech or threats
(3)Issue: how long do you have to wait until the “harm”
has occurred?
(a) Consider: Attempt doctrine (crim law)—the point
at which there is enough circumstantial evidence
to concede harm
(b) Thus, under Brandenburg, STATE USUALLY LOSES
b/c tough to speculate whether there was a
danger of harm
i) But perhaps if other perspectives are
articulated (e.g. from the victim), then can
see the harm
a) e.g. Justice stevens, a WWII vet, who
wants to create an exception for the
symbol of the flag
2. Cross-burning cases
a. RAV v. City of St. Paul: St. Paul’s “Bias Motivated Crime”
statute makes it a misdemeanor for (disorderly conduct)
to place on public or private ppty/ a symbol, object, etc.,
including but not limited to a burning cross or swastika /
knowing or w/ rsbl grounds to know it / arouses others’
anger, alarm, resentment on the basis of race, color,
creed, religion, gender.
(1) Held: (Scalia’s opinion): This is content or viewpoint-
based which discriminates on the reasons individuals
display the symbol (e.g. movie on WWII in a
university class). Does not refer to all
viewing/display of swastikas or burning crosses—
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evidenced by the “end” of the statute which makes it
clear they’re looking @ content.
(a) Viewpoint discrimination, i.e. punishing only
certain viewpoints, is when only one type of the
speech in question is proscribed.
(b) e.g. libel: Can regulate this speech, but can’t write
a law convicting libel only against the govt or
against nuns.
b. Virginia v. Black (2003): Opinion is rooted in the
meaning of the symbol. Cross burning is intimidating.
(1)True threats are not protected
(2) Still considered a breach of the peace. It is an
intentional utterance of words designed to instill fear
in others and in context, is likely to do so.
(a) In a narrow context, this is considered harmful to
society and the govt can regulate it
VII. Vagueness, Support/Advocacy, and Anti-Terror Measures
A. Idaho case: Δ is a 34-year-old grad student who is a
webmaster for Islamic, ME webpages (some advocate suicide
bombing). Doesn’t share FTO views. He is Muslim, against
suicide bombings and not anti-American. Is on trial for the
statute in Humanitarian Law Project—i.e. providing “material
support” to FTOs, including “expert guidance and assistance”
[even though he doesn’t subscribe to the ideas]. Can this
survive a 1st A challenge?
1. Press? speech?
a. No—he is only functioning as a publisher or allowing the
e-mails to go out
b. Yes—he has discretion over the content—which is part
of a system of expressive conduct. Argument that he is
a speech enabler. 1st A jurisprudence includes
cyberspace. The ct’s 1st amendment definition of
speech = broad
2. Govt is acting as a sovereign; no public forum implicated
3. Content-based or content neutral?
a. Δ would argue: content-based.
(1)Govt is only after terrorist speech, advocacy.
(2)Thus, apply strict scrutiny
b. Govt would argue: content-neutral.
(1) Any infringement to speech is incidental. Actually
concerned w/ the secondary effects (national
(a) National security = important governmental
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(b)Ct defers to the executive since this may
implicate “foreign relations”
(2)Must be tailored = “less restrictive means”
(a) Lots of deference to the govt
(3)Thus, apply intermediate level of scrutiny
4. Also argue the VAGUENESS ARGUMENT
a. IF you put ppl in jail, they must be given notice, the
message must be clear.
(1) Here, training by UN-recognized NGOs. Can still pass
Brandenburg and still be prosecuted.
(2) Humanitarian Law. Ct: no one knows how to define
“training.” US claims it is in the US Atty’s Manual.
Ct: That is not enough…uncomfortable to limit the
scope of regulations as they get to the 1st A, even in
a post-9/11 world.
A. Does the regulation implicate “speech” or “press”
1. The courts modern interpretation is broad
2. if there is an expressive component (i.e. verbal, written,
non-verbal—e.g. music or dance--, speech plus conduct—
e.g. flag/draft card/ cross burning)
a. If an expressive component, S.Ct pretends it is a
content-neutral regulation and will look @ secondary
B. IF YES, is the regulator = govt actor?
1. Usually an easy case
2. Sometimes the govt actor looks like a private actor (and is
treated like a govt actor)
a. Company town (marsh v. alabama)—private town
exercising the functions of govt
b. Extraordinary paradigm (parking structure)—
extraordinary entanglement of public and private
c. Extraordinary govt endorsement (shelley v. kraemer or
edmonson)—asking the govt to enforce or force private
C. IF YES, is the govt acting as SOVEREIGN OR
1. Sovereign (e.g. bandshell in Central Park)
2. IF Proprietor, is it a traditional or designated public
forum? OR nonpublic forum?
a. If govt acts as proprietor in nonpublic forum (e.g.
military base) → rational basis scrutiny
ORDINARY ANALYSIS APPLIES—i.e. Is the regulation
content-based or content-neutral (that is, content-neutral
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= not aimed at suppressing expression; rather,
“predominantly” aimed at goals unrelated to speech)? **Ct’s
answer is not always clear. Content-neutral will have an
impact on speech, but there is another purpose for the govt to
stop that, and the speech is only an incidental side effect.
1. Exam tip: A party subject to the regulation will argue
content based, the Govt will argue content neutral
2. If content based → strict scrutiny (i.e. the least
restrictive means to achieve a compelling govt
interest) This gives low deference to the govt…if a party
can give ways to prevent harm w/o infringing speech as
much, then the regulation is probably unconstitutional.
a. Strong presumption against the regulation,
particularly if criminal sanctions involved
b. Areas where the govt’s interest is surely
compelling, therefore, this harmful/low-value
speech is unprotected (i.e. will make an exception to
regulating speech). But govt should still use the least
restrictive means.
(1) Libel (i.e. saying false things to ruin one’s reputation
often regulated via tort law, but no criminal
(2) Obscenity (per Miller definition)
(3) Fighting words—3 forms
(a) Brandenburg, “Illegal advocacy,” → inciting harm
to others
(b) Chaplinsky, “fighting words,´→ inciting harm to
self (still considered a breach of the peace)
(c) Virginia v. Black, “true threat,” → instilling fear in
the hater (and in context, is likely to do so)
(4) Not offensive or pornographic speech not
fitting above (3 categories)
(a) Fuck the draft, RAV = need real fear, real harm
(b)Pornography—protected if not @ Miller lvl
(c) Child Porn—content protect, but has secondary
3. If content neutral → intermediate scrutiny (i.e. less
restrictive means to achieve substantial or
important govt interest)
a. Allows govt leeway to impose some TMP
restrictions, but not total ban (“suppression”)—
must leave rsbl alternative avenues of
communication (e.g. Renton, as long as % of mkt
available for the buyer to enter the market, that is all
the govt is required to do)
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b. Sufficient govt interests (secondary effects
against which govt may protect
(1) Preserve the quality of urban life (Renton)
(2) Avoid traffic congestion, blocking of
(3) Assure public safety or security (e.g. dirty book
stores leads to prostitution, speaker in the middle of
the intersection)
(4) Minimize harm to children (child
pornography/indecent speech cases)—harm:
stigmatizes children, puts them in a coercive
situation. But ct is skeptical in child porn cases
where harm to children is not as clear (e.g. computer
child actors or using adult actors as kids)
(5) Minimize noise (Rock against racism)
a. Discrimination based on viewpoint = not
constitutional (will not even pass rational basis
(1) Content v. Viewpoint
(a) OK: select for suppression a subset at
“core” of reason for proscription (ala Scala in
i) e.g. Regulate libel to publication of 100k ppl
(OK) v. regulate libel against republicans
(not ok b/c distinguishes a viewpoint)
ii) e.g. Obscenity: Can suppress only “more
lascivious” obscenity, but NOT only
obscenity that includes a message of
iii) e.g. Fighting words: Only regulating
desecration of the flag, not burning as a
sign of respect.
b. True Threat statements: Speaker means to
communicate serious expression of intent to
commit unlawful violence to a particular
individual or group [but speaker need not actually
possess that intent; pivotal ? = did the hearer
reasonably understand the statement as a
(1)O’Connor: Proof—presumption to infer intent is
unconstitutional, but can be regulated

Anti-Terror Measures and the Constitution

I. Extraterritoriality and the US Constitution
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A. Padilla: Convicted of murder as a juvenile. Converted to
Islam. Arrested in Chicago airport by the FBI.
B. Hamdi: American citizen. Moves back to Saudi Arabia as a
toddler. Arrested in 12/01 in Afghanistan as a Taliban fighter.
Sent to Guantanamo. Issue: did he renounce his citzenship?
If not expressly, then are acts enough?
1. 1st A implications? (even if arcana)
a. Alien and Sedition Acts (i.e. seditious libel): acceptance
that this is off-limits. Not good for the govt to go after
speech alone
b. Like 1798: Alien Enemies Act
If war’s declared AND actual / attempted invasion or
incursion involving a foreign country, and the president
proclaims, then
all country’s males 14 & over in the US may be
apprehended, restrained, secured, removed….as enemy
→ President determines the conditions…
2. Hamdi’s arguments
a. Cooper v. Aaron: Does the executive have power to
independently interpret the constitution in defiance of
the ct’s interpretation?
b. Joint Resolution of Cong [9/8/01]—authorization for use
of US armed forces.
(1)Is the prez acting w/in the constitution?
(2)Can the prez do this to a US citizen?
(3)If it is w/in Cong’s power to pass the resolution, then
is it for the prez to faithfully execute the articles…
can the prez suspend a writ of habeus corpus?
(a) Non-detention Act, “No citizen shall be imprisoned
or otherwise detained by the US except pursuant
to an Act of Cong.”
i) Limits the prez/govt power to hold ppl
ii) Thus, can’t only Cong suspend a writ of
habeus corpus
(4)Does Congress need to declare war?
(a) To the extent the prez has power, it is w/in the
context of war
(b)But, only contemplated acts against foreign
i) No declared war
ii) No way to determine when this war will
end….so will those ppl have to live there
3. Govt’s arguments
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a. Non-detention Act was to repeal JA internment (i.e.
threats from w/in) ONLY
b. Military law: Can detain enemies on battlefields
c. Prez= commander in chief. In war, judiciary needs to
step back. if prez can kill, surely they can detain
(1)Pretense: When war is over, they get to go home. At
some point, the individual’s danger is gone.
4. Issues not address
a. Does the prez have power to detain w/o a check?
(1)Ct: Uncomfortable to answer “yes”—but still defers
to military/govt, as foreign relations matters
b. Human rights law: Continuing rights over period when
person is in detention
(1)Rationale: Reasons, conditions change
(2)Thus, even if can’t review habeus @ beginning, @
some point…will there be reasons for the judiciary to
step in??
c. Does “appropriate force” [from the joint resolution]
imply judicial review?
(1)2d cir: No, cong must expressly act to give judicial
d. “Reverse incorporation:” Hamdi opinion is proceeding
under the 5th and 14th A. (May proceed under 5th A
DPC where ct reads into EPC)
(1)Differential treatment for Lindh and Hamdi—i.e. both
captured on the same day, both american citizens.
One goes to trial, the other goes to Guantanamo
(a) But would probably not survive strict scrutiny (i.e.
intentional discrimination questionable)
C. Guantanamo: Do the US cts have any role of checking what
happens there?
1. DC Cir: No US ct has jx.
a. Based on a 1950s case where Germans not given a
hearing. Held: aliens have no rights under the
Constitution (i.e Chinese exclusion cases)
2. Lately, though: Greater rights given to aliens today
a. The longer this spins out, the more uncomfortable
judges get
(1) Executive: May have to keep ppl for life. Trust us, to
carry out constitutional duty
(2)Cts: If US cts don’t have jx, then NO CT DOES

Themes implicated in this section:

→ EP
→ citizens v. non-citizens
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→ use/non-use of 1st A
→ whose authority w/r/t constitutional interpretation
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(How to Analyze an EPC Question)
I. First ask, State Action—who is the actor? Is the person being
accused of discrimination a government actor, or can they be
considered a government actor?
A. Federal Govt → 5th A
B. State Govt → 14th A


Strict scrutiny “Suspect” Necessary Compelling
Middle Tier Midlevel Substantial Important
Rational Basis Maybe suspect Demonstrably Real &
w/ Teeth reasonable legitimate
Rational Basis Not suspect Any reasonable Any legitimate

Treatment of Suspect Classifications
If classification is suspect, either:
• on its face, or
• by Yick Wo facially neutral classification analysis

Then strict scrutiny applies, even if classification seems to benefit

traditionally disadvantaged group; i.e. whether state action is negative
or affirmative

[assumption: this applies beyond racial classifications]

What is strict scrutiny?

Suspect classifications are subject to the most exacting scrutiny; i.e.
they must be:
• “necessary” to accomplishing
• “compelling governmental interest”
In context:
“Compelling governmental interest” = “pressing public necessity”

→ National security/stop violence
→ Correct govt’s own, specific acts of past discrimination
→ Promote diversity

→ Forment racial antagonism
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→ Perpetuate stereotypes
→ Remedy societal discrimination
→ Provide role models

the “NECESSARY” [fit]

Narrowly tailored—use least restrictive means to achieve purpose
→ must show race-neutral alternatives considered, but will not achieve
→ detailed findings, time limits preferred
→ quotas, rigid numbers disfavored

(generally only applied in sex-discrimination cases)
Midlevel classification is subject to heightened scrutiny; i.e., must be:
→ substantially related to accomplishing
→ “important” government interest

Whether affirmative or negative act

Remedies short of integration must provide substantial equality re:

tangible and
intangible goods


→ exceedingly persuasive
→ genuine, not invented post hoc to respond to litigation (look @
moments before the situation is made)
→ not reliant on overbroad generalizations/outdated stereotypes re:

Specific important governmental interests

• Compensate for particular economic disabilities
• Promote job opportunity
• Advance development of individuals
• Create or prolong inferiority


(in middle-tier scrutiny; for facially neutral classifications)
(a) facially suspect classification OR
(b) facially neutral, but:

π shows intent “a” motive; i.e. “b/c of” such intent

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• factors:
• disproportionate impact
• clear pattern otherwise unexplainable
• sequence of events to decision/act
• procedure, substance departure
• statements at decisionmaking