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A. The general principal is that people may think and believe anything that they want. . .

1
II. PERMISSIBLE ACCOMMODATION.....................................................................................1
A. Strict Separation: ...........................................................................................................1
B. Neutrality Theory: ..........................................................................................................1
C. Accommodation: ............................................................................................................1
D. Primary question: When can the government provide benefit to religious entities?......1
E. Secondary question: What is the burden?.......................................................................2
III. ESTABLISHMENT CLAUSE: ...............................................................................................2
A. Was intended to erect a wall of separation between the church and state. E.C. is about
the balance of power between the church and state as exercised by government officials.
2
B. Requires that court examine the context of the message that the state action endorses.. 2
C. Lemon v Kurtzman (1971): 3 prong test for Establishment Clause violations (a law is
unconstitutional if it fails any prong). Strict separationist approach...................................3
IV. FREEDOM OF EXPRESSION................................................................................................3
B. Content-based Restrictions .............................................................................................3
C. Content-neutral..............................................................................................................12
V. EQUAL PROTECTION..........................................................................................................13
A. Historical background of race and the Constitution......................................................13
B. The 14th Amendment: All persons born or naturalized in US are citizens. No state
shall make a alw that shall abridge the privileges or immunities of citizens, nor shall any
State deprive any person of life, liberty, or property w/o due process of the law, nor deny
any person equal protection of the laws. After the 14th, minorities fell within the
“universe of equality” b/c of the word “citizen.”...............................................................14
C. All equal protection cases pose the same question; is the government’s classification
justified by a sufficient purpose?........................................................................................14
VI. IMPLIED FUNDAMENTAL RIGHTS UNDER EQUAL PROTECTION..........................20
A. Government infringement on fundamental rights are subject to strict scrutiny............20
B. If a right is not fundamental, then it gets rational basis review; this applies to claims
under both equal protection and due process.....................................................................20
C. PRIVILEGES OR IMMUNITIES CLAUSE: § 1 of the 14th Amendment provides
that “no State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States.”.....................................................................20
D. INCORPORATION: Bill of rights only applicable to the federal gov’t. Therefore, the
1st and 5th only applied to the federal gov’t and not the states. The 9th and 10th open up
possibility of implied rights that can be incorporated. (e.g. the 9th, reserves rights not
enumerated to the people, 10th reserves all rights not granted to the fed or prohibited to it
by the States, to the the people...........................................................................................21
VII. Substantive Due Process/Economic Interests: whether the gov’t has an adequate reason for
taking away a person’s life, liberty, or property. In other words, is there a significant
justification for the gov’t’s action? Whether there is such a justification will depend on the level
of scrutiny used. ............................................................................................................................21
VIII. Voting: Nowhere in the constitution does it say that voting is a substantive due process
right but it seems to be implicit.....................................................................................................22

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IX. Substantive due process you are always looking for a category (right to vote, right to
contract, right to work); with respect to equal protection is the type of distinction the government
is making getting strict, intermediate or rationality view..............................................................22
X. Privacy: which provision provides for this right? It is not expressly provided for so go to
due process.....................................................................................................................................23
A. Penumbra of rights that the bill of rights cast that is implicit to all. ...........................23

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I. FREE EXERCISE CLAUSE
A. The general principal is that people may think and believe anything that they want.
1. However, there is no absolute protection for religiously motivated conduct. Content neutral regulation
of religiously motivated conduct may be okay.
a. Reynolds v US, 1878 – Ban on polygamy
2. The Courts will use strict scrutiny when: gov’t regulation burdens religion.
a. When a law burdens religious observances
i. Sherbert v Verner, 1963 – The Court held unconstitutional a state gov’t denial of
unemployment benefits from woman who left job because she was a Saturday Sabbath
observer. This was a substantial burden on religion
ii. Braunfeld v. Braun, 1965 – Where the burden is incidental, however, the Court will uphold
the state law if it was executed in the least restrictive means. In this case, the city declared
Sunday the day of rest and required all business should be shut. The OJ’s in town claimed
that was an economic burden because they closed on Saturday for their Sabbath and thus lost
an extra day of income as opposed to other groups who lost one.
b. When the government requires conduct that the person’s religion prohibits
i. Wisconsin v Yoder, 1972 – The Court allowed for an exemption for Amish kids against a
state requiring compulsory H.S. attendance. The court determined that the government’s
compelling interest was compelling as against the Amish.
(A) BTW: this would be decided differently under Smith’s low-level scrutiny.
3. The Court will use low-level scrutiny for generally applicable neutral laws. But, the Court will use
strict scrutiny where the law specifically targets religion.
a. Smith, 1990 – The Court upheld a state gov’t drug regulation banned the use of certain drugs.
Smith used peyote for religious ceremony. The Court however, held that the government had a
compelling interest and thus the burden on religion did not make the law invalid.1
i. Under Smith, the FEC cannot be used to challenge a neutral law of general applicability.
Therefore, no matter how much a law burdens religious practices, under Smith it is
constitutional so long as the law does not single out religious behavior for punishment and
was not motivated by a desire to interfere with religion.
ii. Unlike Sherbert, the Court used low-level scrutiny giving deference to the legislature.
b. Church of Lukumi Babalu Aye, Inc, v. Hialeah, 1993 – a local Florida legislature enacted law
specifically to restrict religious group from using animal sacrifices. The Court will use strict
scrutiny where the law specifically targets religion. Thus under strict scrutiny the law was found
unconstitutional as a prohibition against religious practices.
c. City of Boerne v. Flores, 1997 – the Court invalidated RFRA under sect. 5 of the 14th. 2
II. PERMISSIBLE ACCOMMODATION
A. Strict Separation:
1. To the greatest extent, possible government and religion should be separated. The government should
be, as much as possible, secular; religion should be entirely in the private realm of society.
a. Madison’s “not three pence should go to supporting religion …”
B. Neutrality Theory:
1. Government cannot favor religion over secularism or one religion over another.
C. Accommodation:
1. Establishment Clause interpreted to recognize the importance of religion in society and accommodate
its presence in government. Under this approach, government violates the Establishment Clause only
if it literally establishes a church, coerces religious participation or favors one religion over others.
a. What constitutes coercion?
D. Primary question: When can the government provide benefit to religious entities?

1
The Court was trying to distance itself from policy making. It was really saying to Smith, if you don’t like it petition your state legislature not
the courts.
2
Because of Smith, Congress passed RFRA overruling the Court’s decision to use low level scrutiny and instead determined that all religious
case should get strict scrutiny. In the City of Beorne v Flores, the Court declared the RFRA was unconstitutional as applied to the States but there
is some ambiguity if it still applies to the federal government. The current belief is that it is invalid because of the separation of powers doctrine
but the Court has not address it to date. Anyway, the standard to use should be Smith.

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1. P.A. allows government to lift the burden the fall upon religion by exempting it from laws that were
enacted for a general public policy.
a. Church of Jesus Christ of Latter-Day Saints v. Amos, 1987 – Civil Rights Act of 1964 exempted
religious organization thus allowing groups to discriminate in order to allow the organizations to
further its religious beliefs. Amos was fired b/c he was not a member of the organization. He
protested stating that he was a janitor and that the law was not meant to be used by the church
against him; his job did not promote the religion. The court held that the organization must decide
what types of jobs further its purpose not Congress or the courts.
i. Accommodation/Tolerance: here the court is upholding the principle that religion is
important and thus it is permissible for the legislature to carve out an exception in a law which
may place a burden on the organizations ability to further its religious purpose.
2. However, government is not allowed to create laws that specifically benefit religion for no other
purposes than to promote that religion or religions.
a. Texas Monthly v. Bullock, 1989 – The court held that a statute exempting religious publications
from state sales tax is unconstitutional.
i. Strict view of Separation: TX was not able to show a burden. They merely carved out an
exception in a perfectly valid and neutral law. This seems to promote religion (although not
just one over another) over non-religious publications.
E. Secondary question: What is the burden?
1. Once a burden is established then you must look to see if laws enacted are meant to lift an undue
burden on that religion.
a. Board of Education of Kiryas Joel Village School District v. Grumet, 1994 – Board of Ed agreed
to create a school district that exactly mirrored the religious landscape of a group of Hasidic Jews.
The district was fabricated to provide a public school for the disabled children, however, because
of its boundaries the school catered only to the Hasidim of that community. Unconstitutional
because political boundaries being drawn for special treatment
i. Not the least restrictive way to achieve the objective.
(A) Cannot create political boundaries based on religious identity.
(B) Teaching other children to be tolerant would not have achieved the groups desire for
isolation but if they wanted government benefit then they must participate in a neutrally
drawn district.
2. Is the law narrowly tailored; is there a tight fit btwn the accommodation and the burden?
III. ESTABLISHMENT CLAUSE:
A. Was intended to erect a wall of separation between the church and state. E.C. is about the balance of
power between the church and state as exercised by government officials.
B. Requires that court examine the context of the message that the state action endorses.
1. A facial challenge goes only to the words; examines if the action is unconstitutional on its face.
a. Everson v. Board of Education, 1947 – Establishment clause challenge against a grant for New
Jersey residents with children in private schools to get reimbursed for cost of bus transportation.
Most of the private schools were Roman Catholic. Grant satisfied 1st Amendment requirement
that states be neutral in the relations with groups of religious believers and non-believers.
i. If class of recipients is not distinguished by religion then it is constitutional
2. An as Applied Challenge – looks at the law as it is applied in the particular situation
a. Lee v. Weisman, 1992 – School principal invited a Rabbi to say prayers at graduation. The
benediction was secular. One student objected to the prayer as part f ceremony. School argued
that it was not promoting any one religion nor were they coercing students to participate in
religious exercise. The students attendance was voluntary. The court declared unconstitutional
clergy-delivered prayers at public school graduation.
i. The court found that such prayers are inherently coercive because there is great pressure on
students to attend their graduations ceremonies and to not leave during the prayers.
ii. Held that there in no separation if one is psychologically coerced to participate in prayer.
(A) Thus, the court uses the term coercion but what they rally mean is endorsement.

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C. Lemon v Kurtzman (1971): 3 prong test for Establishment Clause violations (a law is unconstitutional if it
fails any prong). Strict separationist approach.3
1. Statute must have secular legislative purpose
a. The very essence of the establishment clause is to keep the government from acting to advance
religion.
i. Lynch v. Donnelly, 1984 – City of Pawtucket (R.I.) set up Christmas display including
nativity scene in Bethlehem (crèche) during the holiday season. Whether the City’s display
which contains the nativity scene establishes a religion. The court holds that the city
sponsored display is a legitimate secular purpose and that whatever benefits are conferred are
remote and incidental. Views no difference between the use of the crèche in the display and
the governments recognition of Christmas.
2. secular effect: Its principal or primary effect must be neither advance nor inhibit religion (symbolic
endorsement)
3. Statute must not foster “an excessive government entanglement with religion.”
a. Zelman v. Simmons Harris – Cleveland School district gave vouchers to families to send their kids
to either charter, private, general public or suburban public schools. Does the fact that the
vouchers may be used for private-religious schools violate the Establishment Clause? NO! This
is a true choice. The gov’t gives money to families and it’s the families that make the choice
where to send the child and ultimately the money.
i. Seems to indicate that the government may not directly promote or become entangled with
religion but it may give money to families although certain that such money will promote or
be used for religious purposes.
IV. FREEDOM OF EXPRESSION4
A. There are many justifications for protecting free speech. The most prevalent is that freedom of speech
fosters a market place of ideas. It is a forum for some to vent dangerous ideas and essential to
representative democracy. Free speech encourages tolerance and molds the national identity. It is an
inalienable, fundamental right that is necessary to create productive members of our society. Nevertheless,
no freedom is absolute.
B. Content-based Restrictions 5
3
Rehnquist, Scalia, Kennedy and Thomas would abandon
Stevens, Souter and Ginsburg would continue using
Breyer and O’Connor on the fence.

UNPROTECTED SPEECH
(May be suppressed)1st AMENDMENT – PROTECTED SPEECH
Content-Based Restriction → Strict Scrutiny
Time/Place/Manner Restriction → Intermediate Scrutiny“Obscenity”
Roth; Miller
But certain obscenity in the home is not illegal“Defamation”
Near v. Minnesota
But may not be subject to prior restraint“Fighting Words”
Chaplinsky
• Must look at the context.HIERARCHY OF PROTECTED SPEECHPolitical/Religious speech – Highly Protected (Brandenburg
Imminent Lawless Action Test) most protected, but gov’t may censor (i.e. during times of war).
• Ex: Schenk → BrandenburgIntermediate Speech – Protected
• Ex: Offensive AND Political Speech (Cohen v Cali)
• Ex: Sexually oriented speech/conduct (??????)Low-value Speech – Protected (but not obscenity)
• Interest Balancing Test
• Ex: Pornography, digital child porn
 But: Child porn is prohibited to protect the kids – legitimate state objective (NY v Ferber).
Ex. Purely offensive speech – Feiner
5

MERE WORDS ARE PUNISHABLEDennis


Mere words are punishableWhitney
Membership w/o intent or effect punishableGitlow
Advocacy w/o effect is punishableCourt applies C.P.D. Test*Masses
Incitement to illegal actionILLEGAL ACTION IS PUNISHABLEAbrams
CPD, Intent is irrelevantDebbs

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1. Dangerous Ideas and Information (receives strict scrutiny generally)
a. Primary question is “in what circumstances may government restrict speech because of the
expression of particular ideas or items of information that might cause some harm to government,
to private individuals, or to society in general?
i. Expression that induces unlawful conduct:
ii. Mere Agitation Is Protected; Incitement/Advocacy To Do Illegal Act Is Not.
(A) Masses Pub. Co. v. Patten, 1917 – Post master refused to deliver P’s magazine b/c it had
tendency to encourage insubordination. Thus, the post master determined that under the
Espionage Act of 1917 they did not have to deliver the publication. The 2nd Circuit did
not invalidate the Act but held, as applied in this context, it was a violation of 1st
amendment right to free speech.
(1) You must ask; what is the likelihood of illegal action, and how bad is the illegal
action. If attenuated, the speech is protected. If it had a direct relationship to some
harm or illegal action then it will be censored.
(a) Must always look at the context in which the law is applied. Where a person’s
speech counsels, urges, incites someone to disobey the law, then the law as
applied will be upheld.
(b) However, where someone is merely expressing their opinion and that speech
does not trigger an illegal action but only agitation, the speech is protected.
(B) Schenk v US, 1919 – D convicted of conspiring to violate the Espionage Act of 1917 for
advocating resistance to the draft in published leaflets. The Court upheld under the Clear
& Present Danger Test (“CPD”).
(1) Under CPD substantive evils are not protected. Clear and present danger test seems
to be:
(a) A likelihood of imminent, significant harm.
(b) ITC: the Court reasoned that the leaflets would not have been sent if there was
no chance of it having an effect. Thus, the Court reasoned that the
consequences of the communication was a substantive evil.
(2) It is unclear how present, or what danger must be preen to censor speech it; becomes
a sliding scale. See e.g.,:
(a) Frohwerk v US, 1919 – Published a German language newspaper and was
convicted because the articles criticized the war.
(i) Holmes acknowledged that there was no evidence that the articles had any
adverse effect on the war effort. The Court, focusing on the consequences
of the communication, said “on the record it is impossible to say that it
might not have been found that the circulation of the paper was in quarters
where a little breath would be enough to kindle a flame and the face was
known and relied upon by those who sent he paper out.”
(ii) “a little breath would be enough to kindle a flame” – causation is attenuate.
(b) Debs v US, 1919 – Debs, a national leader of the Socialist party, was convicted
under the Act of 1917 of attempting to obstruct the recruiting and enlistment
service of the United States.
(i) The court noted “the main theme of the speech was socialism, its growth,
and the prophecy of its ultimate success.” The Court reasoned that if the
purpose of the speech, whether incidental or not, was to oppose the war,
and if under those circumstances that would have been the probably effect,
it was not protected.
(ii) If the purpose and probable effect of speech, whether incidental or not, was
to oppose the war, not protected – even more attenuated.
(iii) In the context of war, mere words may be suppressed.

Probable EffectSchenck
Unclear CPD ← ← ← Time Line ← ← ← *Only conviction overturned

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(c) Abrams v US, 1919 – A group of self-proclaimed socialist and anarchists
Russian immigrants, perceived the expedition as an attempt to crush the Russian
Revolution. They anonymously distributed several thousand copies of leaflets
that called for a general strike. Ds were arrested and convicted of conspiring to
violate various provisions of the 1917 Act. The court, using CPD of Schenck
and Frohwerk as precedent, confirmed the convictions
(i) Under CPD, intent is irrelevant.
(ii) Holmes’s Dissent: he articulated the market place of ideas metaphor for the
1st Amendment. Holmes thought that the clear and present danger test was
not met in Abrams.
iii. Advocacy Alone May Be Suppressed
(A) Gitlow v New York, 1925 – Gitlow convicted for publishing the “Left wing Manifesto”
and thereby violating a state statute prohibiting advocating overthrowing of the
government. Although there was no evidence that the speech had any effect the Court
upheld the conviction. The Court determined that freedom of speech and press…does not
deprive a State of its primary and essential right of self preservation.
(1) Advocacy alone may be suppressed even w/o evidence of effect on overthrow of
gov’t.
(a) Advocacy is a spark that may kindle a fire.
(B) Whitney v California, 1927 – D convicted for attending convention and being a member
of the Socialist Party which advocated the violent over-throw of the gov’t. Although,
there was empirical evidence that D did not agree with overthrowing government, the
Court upheld her conviction.
(1) Membership in certain organizations that advocate the violent overthrow of the
gov’t is punishable even w/o proven intent of the individual to do just that.
(a) Query how this analysis jives with the whole free speech, market place of ideas
philosophy.
(b) Would the results have been the same if the organization did not advocate the
violent overthrow of gov’t?
(C) Dennis v US, 1951 – D convicted for teaching writings by Stalin, Marx and Engels, and
Lenin. There was no accusation that they had done anything other than teach these
works, but they were still convicted of violating the Smith Act for conspiring to advocate
the overthrow of the United States Government, and of conspiring to reorganize the U.S.
Communist party, which the prosecution claimed was group that advocated such
overthrow.
(1) The court upheld the conviction applying the “clear and present danger test.” Thus,
overruling the reasonableness test in Gitlow and Whitney. The measure of the
C&PD test was as articulated by J. L. Hand:
(a) The court must ask “whether the gravity of the evil discounted by its
improbability, justifies such invasion of free speech as is necessary to avoid
the danger.”
(i) The harms of an overthrow of government are so enormous that the
government need not show that the danger is imminent or probable in order
to punish the speech.
(ii) Under this model, probability and imminence are seemingly irrelevant.
(iii) Speech advocating the overthrow of the government can be punished
without any showing of likelihood or imminence.
iv. Imminent Lawless Action Test – Current Standard of Review
(A) Brandenburg v Ohio, 1969 – KKK members convicted under OH criminal syndicalism
act, which prohibited advocacy of illegal action. The Court Court struck down the Ohio
statute, without considering whether the D’s actual speech could have been properly
proscribed. A conviction for incitement under Brandenburg is constitutional only if
several requirements are met:

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(1) The advocacy is directed to inciting imminent harm
(a) A likelihood of producing imminent lawless action
(2) And an intent to cause imminent illegality.
(a) Open Question:
(i) Does Brandenburg (imminent lawlessness) apply during wartime?
(ii) During times of war, the court will more likely defer to the legislature.
(b) Hamilton:
(i) Constitution allows flexibility to allow different criteria during varying
scenarios.
(ii) Must always balance order and liberty.
v. Expression that “threatens” harm to others/criticizes judicial process
(A) Bridges v California, 1941 – A newspaper was held in contempt for a series of editorials
concerning the pending sentencing of two members of a labor union who had been
convicted of assaulting nonunion truck drivers. The editorials described the assailants as
“thugs” and advocated prison sentences for them. The Court held that a publisher can be
held in contempt for an out of court statement only if there is a clear and present danger
of harm to the legal system.
(1) ITC: there was no clear and present danger so the conviction overturned.
(a) Justice Black also concerned about the perception of the court if such an action
existed.
(B) Terminiello v Chicago, 1949 – D convicted for disturbing the peace b/c of a speech that
he gave attacking his opponents as “slimy scum,” “snakes,” and “bedbugs.” Although
police were present, a disturbance broke out. Jury instructed that he could be convicted
for speech that “stirs the public to anger, invites dispute, brings about a condition of
unrest or creates a disturbance.”
(1) The Court overturned the conviction and found that the jury instructions violated the
1St Amendment’s protection of speech.
(a) Stands for the proposition that speech may not be restricted because the ideas
expressed offend the audience.
vi. Expression that provokes a hostile audience response – always look at the context of the
speech.
(A) Cantwell v Conn, 1940 – A Jehovah’s Witness, was prosecuted for breach of the peace
for playing a phonograph record on a street corner that attacked the Roman Catholic
religion. The Court overturned a conviction for disturbing the peace because of the
absence of proof of a clear and present danger.
(1) Remember also that religious and political beliefs are highly protected and absolute.
Where there is no conduct causing any form of danger, the State cannot regulate.
(B) Feiner v New York, 1951 – D convicted for speech which criticized president Truman
and local political officials for their inadequate record on civil rights. Some members of
the crowd were angered by the speech and he police asked him to leave. He refused and
the police arrested him. He was charged with disturbing the peace.
(1) The Court upheld the conviction for disturbing the peace.
(a) In this context, the clear and present danger test allows the audiences
reaction, to be the basis for suppression of speech.
(2) Dissent: Justice Black said the appropriate response of the police was to try to
control the crowd, and only if that was impossible and a threat to breach of the peach
imminent should the police arrest the speaker.
(C) Chaplinsky v N.H, 1942 – A Jehovah’s Witness distributed religious literature on a street
corner and gave a speech denouncing other religions as a “racket.” Members of the
crowd complained to Marshall. Marshall warned Chaplinsky that the crowd was getting
restless. Sometime later, Chaplinsky told the Marshall “you are a God damned
racketeer” and “a damned Fascist and the whole government of Rochester are Fascists or
agents of Fascists.” He was convicted for disturbing the peace.

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(1) The Court upheld the conviction b/c the right of free speech is not absolute. Fighting
words are of slight social value as a step to truth any benefit that may be derived
from them is clearly outweighed by the social interest in order and morality.
(2) Fighting words are not communications of information or opinions protected by
the constitution. However, the fighting words must be able to provoke the average
person to retaliate and thereby cause a breach of peace.
(D) Cohen v California, – Fuck the draft T-Shirt is protected speech.
(1) Not fighting words when the public has the opportunity to avert their eyes
(a) Also, political aspect of the speech gave it greater protection.
vii. Expression the discloses confidential information – must balance the interest of gov’t against
the 1st right of speech.
(A) Landmark Comm. v Virginia, 1978 – A state statute created criminal liability for
divulging or publishing information regarding confidential proceedings of a judicial
inquiry board. A newspaper was convicted of violating the statute by reporting about an
investigation of a state court judge.
(1) The court ruled that the statute was unconstitutional. They reasoned that the statute
sought to punish what was at the core of the 1st amendment and the commonwealth’s
interest were not sufficient to justify the actual and potential encroachments of
freedom of press.
(a) In order to restrain the publication of confidential information the state must
advance sufficient reason.
(B) NY Times; Washington Post v US, 1971 – Both papers published excerpts from the
Pentagon Papers (Vietnam War). The US sought an injunction precluding publication of
the works on the grounds of national security. 18 days from the first article printed the
S.Ct issued a 6 to 3 decision.
(1) The Court held that the prior restraint violated the 1st amendment. Because of the
nature of the case, each justice wrote an opinion.
(2) There is a rebuttable presumption against constitutionality of prior restraint. Burden
on the gov’t to prove danger to national security.
(a) However, commentators questioned if the court would have ruled as they did if
the danger to national security was more imminent.
(b) Two major questions are still left open:
(i) What circumstances would justify a court order preventing publication so as
to protect national security?
(ii) What difference would it make if there were a statute authorizing a prior
restraint?
(C) Nebraska Press Assoc. v Stuart, 1976 – D was tried for committing six murders in a small
town in Nebraska. The trial court issued an injunction restraining the media from
publishing or broadcasting accounts of confessions or admissions made by the accused or
facts strongly implicating him. The lower court was concerned that otherwise there
would be a due process violation.
(1) The S. Ct. found that the lower court could have done other things to try to ensure
the privacy of the trial rather than imposing a prior restraint on the press. They
could have instituted a gag order on the participants in the trial.
(a) It seems to indicate that the court must have a compelling reason to institute a
gag order.
b. Exceptions (can receive either intermediate or rational level review)
i. The government can punish or prohibit certain categories of unprotected low level speech6

6
Lewd, Profane & Indecent: Generally such speech is protected by the 1st, but there are exceptions. Fighting words doctrine: the court uses 3
techniques to overturn convictions of statutes that target fighting words:
• by ruling it applies only to speech directed at another person that is likely to produce a violent response.
• courts frequently found laws prohibiting fighting words to be unconstitutionally vague or overbroad
• laws the prohibit fighting words – such as expressions of hate based on race or gender – to be impermissible content-based restrictions of
speech.

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(A) Obscenity: The current definition is under Miller.
(1) Roth v US, 1957 – Roth convicted of mailing obscene publication. The issue is
whether obscenity is within the area of protected speech and press.
(a) S.Ct. held that obscenity is not within the area of constitutionally protected
speech or press; a category of speech unprotected by the 1st Amendment.
(i) Court described obscene material as that which deals with sex in a manner
appealing to the prurient interest; prurient defined as “material having a
tendency to excite lustful thoughts.”
(ii) Standards for judging obscenity is whether to the average person, applying
contemporary community standards, the dominant theme of the material
taken as a whole appeals to the prurient interest.”
(2) Miller v California, 1973 – Miller convicted of causing unsolicited brochures to be
sent through the mail. The brochures consisted of explicit pictures and drawings
depicting group sex with genital often prominently displayed. Court reaffirmed that
obscenity is unprotected by the 1st Amendment and formulated new guidelines to
determine if the materials are obscene.. To determine if something is obscene,
under current standards you must ask:
(a) Whether the average persons, applying contemporary community standards
would find the dominant theme of the material as a whole appeals to the
prurient interest
(i) Question for the jury
(b) Whether the work depicts or describes patently offensive materially specifically
defined by the applicable law
(i) Aimed at determining whether the law is over or under inclusive.
(c) And whether the work as a whole contains any literary, political or scientific
value.
(i) Requires expert testimony – represents a liberal protection of “socially
valuable” works.
(3) Paris Adult Theatre v Slanton, 1973 – the Court allows a state to regulate adult
theatres, although it is explicitly for use by adults who consent to see such material.
The Court held that where the state could provide a legitimate state interest to
regulate obscene materials the regulation will be validated.
(a) Legitimate interest may include
(i) regulating the exposure of obscene materials to juveniles and non-
consenting adults
(ii) the interests of the public in the quality of life
(iii) and the total community environment,
(iv) the tone of the commerce in the great city centers,
(v) and possibly pubic safety.
(b) Empirical data is not necessary to establish state interest. In Roth, the Court
implicitly accepted that a legislature could legitimately act on such a conclusion
to protect the social interest in order and morality.
(4) New York v Ferber, 1982 – The state’s interest in safeguarding the physical and
psychological well-being of a minor is compelling. The use of children as the
subject of pornography is harmful to the physiological, emotional, and mental health
of the child. Child pornography is closely related the child abuse because the
children are harmed by a permanent record of their involvement in pornography and
children are exploited in the making of pornography. The court held that Miller
standard is not applicable to child porno, instead the standard is:
(a) A trier of facts need not find that the materials appeal to the prurient interest of
the average person

Thus, it is unlikely that fighting words statutes may survive.

Tricia Phillips Page 8 12/8/2010


(b) It is not required that sexual conduct portrayed be done so in a patently offensive
way
(c) The material at issue need not be considered as a whole.
(i) Justice O’Connor in her concurrence argues that the governments interest in
protecting children supercedes any artistic, literary, political or scientific
value.
(d) Regardless of artistic value, the government has a compelling interest to
protect children from being sexually exploited and thus child pornography is
afforded no 1st amendment protection.
(i) This does not apply where an adult is being portrayed as a child. Then
there is no abuse which the government must protect. (Ashcroft v Free
Speech Coalition, 2002)
(B) The Gov’t may not regulate all offensive Speech
(1) Cohen v. California, 1971 – It is a basic 1st Amendment principle that the
government may not prohibit or punish speech simply because others might find it
offensive. Cohen wore a jacket that said “Fuck the Draft” while in a courtroom as a
sign of protest over the US involvement in the Vietnam War. He was convicted for
disturbing the peace. The USSCT overturned the conviction.
(a) It is a basic 1st Amendment principle that the government may not prohibit or
punish speech simply because others might find it offensive.
(i) Speech does not qualify as fighting words b/c it is not directed at a
particular person.
(ii) The mere presumed presence of unwitting listeners or viewers does not
serve automatically to justify curtailing all speech capable of giving offense.
(b) Court, however, recognizes that the government may properly act in many
situations to prohibit intrusion into the privacy of the home of unwelcome
views and ideas which cannot be banned from the public dialogue
(c) Political and offensive speech get mixed intermediate/strict scrutiny –
compelling interest, tailoring.
(2) Erznoznik v. Jacksonville, 1975 – Nudity alone is not enough to put speech in the
category of low level sexually oriented speech. Court invalidated an ordinance that
declared it a public nuisance for any drive-in movie theatre to exhibit any motion
picture that portrayed the human male or female bare buttocks, breasts of pubic areas
if the picture is visible from any public street or place. The Court determined that all
nudity cannot be deemed obscene.
(a) Content-based restriction gets strict scrutiny. In this case, the law wasn’t
narrowly tailored.
(b) It cannot be a content-neutral because the regulation did not prohibit all
distracting materials, only nudity.
(c) Doesn’t fit under the captive audience regulation because drivers could divert
their eyes.
(i) Although, in light of FCC v Pacifica how would this have turned out if the
city tried a time, place and manner regulation?
(C) Time, Place & Manner Regulations
(1) FCC v Pacifica Foundation, 1978 – gov’t can prohibit profane and indecent
language over the broadcast media. George Carlin, 7 dirty words. Father turned on
radio in the car and heard a couple of choice words. Father’s kid was in the car at
the time.
(a) FCC can regulate broadcast media. Although, the gov’t may not be able to ban
certain content all together they can regulate the time and manner in which it is
broadcast.
(i) Usually will be upheld where the gov’t can elaborate a substantial govern’t
interest such as protecting children and non-consenting adults from
bombardment of such material in their personal dwellings.

Tricia Phillips Page 9 12/8/2010


(ii) Nature of broad cast radio makes this type of regulation permissible.
(iii) Ashcroft v The Free Speech Coalition, 2002 – Although, low level
speech may be regulated where the state demonstrates a compelling interest,
such as protecting children, where the effects are secondary and not direct
the court may not uphold the regulation. In these types of case, the gov’t
must demonstrate actual harm not just secondary. This is also because this
type of regulation is not about time, place or manner and thus must meet
strict scrutiny.
(b) However, gov’t may not be able to regulate indecent or obscene material over
any media that requires an affirmative action on the part of the consumer.
Understand that here the gov’t isn’t regulating time, place and manner but
content.
(i) Sable Communications v. FCC – telephone is different from broadcast
(ii) Denver Edu. Telecom v FCC – cable company regulations must meet strict
scrutiny
(iii) Reno v ACLU – the internet regulations must also be narrowly tailored.
(iv) US v Playboy Entertainment – parents can block certain channel and prudes
can just not order certain cable channels.
(2) Young v American Mini-Theaters – Court upheld a zoning ordinance that required
porn shops to be 1,000 ft. away from each other. By making it a zoning regulation
the content is not banned; thus, the Court will use intermediate scrutiny. If the state
can articulate an important or significant interest then the regulation may stand.
(a) The Court will overlook incidental restrictions on 1st freedoms where the law
can be feigned to be content neutral.
(D) Hate Speech – Even within categories of unprotected speech, the government is limited in
its ability to draw content-based distinctions.
(1) R.A.V. v City of St. Paul, 1992 – An ordinance prohibited placing on public or
private property symbols, objects, characterizations, or graffiti including but not
limited to a burning cross or Nazi swastika which one knows or has reason to know
arouses anger, alarm or resentment in others on the basis of race, color, creed,
religion or gender.: The Minnesota courts narrowly applied the ordinance only to
fighting words or incitement not protected by the 1st.
(a) The ordinance was invalidated b/c it drew a distinction among expressions of
hate based on race, religion or gender but not on political affiliation or sexual
orientation.
(b) Even when gov’t is regulating a supposedly “unprotected” category, it may not
do so in a content-based manner.
(c) Content based distinctions within a category of unprotected speech will have
to meet strict scrutiny, subject to two exceptions:
(i) If it directly advances the reason why the category of speech is unprotected
(ii) If it is directed at remedying secondary effects of speech and is justified
without respect to content.
(2) Wisconsin v. Mitchell, 1993 – The Court upheld a state law that impose greater
punishment if it could be proved that a victim was chosen because of race. Such
penalties are directed at conduct not speech. Greater punishment justified because
of harm to society. States desire to punish such behavior justified as such conduct
could result in retaliation, inflict distinct emotional harm on victims, and incite
community unrest.
(a) The government may provide penalty enhancements for hate motivated crime.
(3) Virginia v Black, 2003 – A Virginia statute banning cross burning with “an intent to
intimidate a person or group of persons” violates the 1st Amendment. The Court
determined that while the State, consistent with 1st Amendment, may ban cross
burning carried out with the intent to intimidate, the provision in the Virginia statute

Tricia Phillips Page 10 12/8/2010


treating any cross burning as prima facie evidence of intent to intimidate renders the
statute unconstitutional.
(a) That crossing burning is prima facie evidence of intent to intimidate creates a
chilling effect. Here the state is not just regulating conduct that is harmful, but it
is also regulating other forms of conduct that is protected. This law is
overbroad. Not only will the person who intends to intimidate be convicted but
so will the person who merely intends to state “I hate all Black people”.
(E) Symbolic Conduct7: There is a two track analysis.
(1) Where the courts believe that certain symbolic expression is prohibited because the
government objects to the communicative content of the expression, the Court
applies strict scrutiny.
(2) Where the Court believes that the government’s interest in regulating the conduct has
nothing to do with the conduct’s expressive content a more-easily satisfied balancing
test is applied, in which the interest being pursued by the state may well be found to
outweigh the individuals interest in using that particular mode of expression.
(a) Content-neutral: the harm which the regulation seeks to avoid must not stem
from the communicative content of the conduct.
(F) O’Brien Analysis: conduct combining speech and non-speech elements could be
regulated if four requirements were met:
(a) The regulation was within the constitutional power of the government;
(b) If furthered an “important or substantial governmental interest”;
(c) That interest was “unrelated to the suppression of the free expression”; and
(content neutral)
(d) The incidental restriction on 1st amendment freedoms was “no greater than is
essential to the furtherance of the governmental interest. (tailoring requirement).
(2) United States v. O’Brien8, 1968 – O’Brien and others burned their draft cards in
public in protest of the Vietnam war. They were convicted of violating an
amendment to draft law that made it a crime to “knowingly destroy or mutilate” a
draft card. O’Brien says that his action was symbolic speech and thus protected by
the 1st.
(a) Holding: the Court held that conduct combining speech and non-speech
elements could be regulated if four requirements were met:
(i) The regulation was within the constitutional power of the government;
(ii) If furthered an “important or substantial governmental interest”;
(iii) That interest was “unrelated to the suppression of the free expression”;
and (content neutral)
(iv) The incidental restriction on 1st amendment freedoms was “no greater than
is essential to the furtherance of the governmental interest. (tailoring
requirement).
(b) The Court found all these requirements were satisfied.
(3) Barnes v Glen Theatre, Inc. , 1991 – The Supreme court upheld an Indiana statute
prohibiting public nudity and requiring female dancers to wear at a minimum, pasties
and G-strings when they dance in a 5-4 decision.
(a) The plurality saw nude dancing as symbolic speech and thus applied the test
used for regulating such speech. It also upheld the prohibition because it served
the goal of “protecting societal order and morality.” Thus they say it as a neutral
law outlawing public nudity in general and thus not subject to strict scrutiny and
but lower level review. Scalia argued that the challenged regulation must be
upheld as a general law regulating conduct and not specifically directed at
7

IDEASSPEECHCONDUCTAlways protected, no level of scrutinyNot absolutely protectedMay always be regulated


(Wisconsin v. Mitchell)No threat of harmAsk: what connection to illegal action/public injury?When speech breaks into overt acts, gov’t has
broad authority b/c of danger to public SYMOBLIC CONDUCT – Intermediate Scrutiny (O’Brien)
8
In 1st amendment cases, the existence of a legitimate non-content-based government interest can save a statute that burdens expressive conduct,
even if one of the government’s motive is o suppress or oppose the message being communicated.

Tricia Phillips Page 11 12/8/2010


expression, thus, it is not subject to first amendment scrutiny at all. Souter
argued that a state legislature seeking to combat the secondary effects of adult
entertainment need not await localized proof of those effect before regulating
the cause of the effects.
(i) The state is allowed to regulate symbolic speech where the regulations
serves as a means of protecting societal order and morality.
(4) City of Erie v. PAP’S AM, 2000 – The city forbade nude dancing by requiring that
any dancer wear pasties and a G-string. A club that represented nude entertainment
opposed the ban on 1st grounds. The city defended its ban by claiming that it was not
trying to eliminate the undesirable “secondary effects” of live nude dancing, such as
increased crime.
(a) The ban was upheld as a content-neutral time-place-and-manner regulation. The
plurality was not concerned with evidence that the city’s motives was to
eliminate certain messages – as long as one of the city’s motives was the valid
one of combating secondary effects. The other members of the majority held
that the law was not specifically directed at expression and therefore not subject
to 1st amendment scrutiny.
(i) City can ban nude dancing where one of its motives is its dislike of the
message conveyed by nudity, as long as the city is also acting to combat the
“secondary effects” from the dancing.
C. Content-neutral
1. The government must be both viewpoint neutral and subject matter neutral.(intermediate scrutiny)
a. Viewpoint neutral – the government cannot regulate speech based on the ideology of the messages
b. Subject Matter neutral – the government cannot regulated speech based on the topic of the speech
2. Over breadth and vagueness: Both concepts are closely related; people often challenge laws under
both doctrines simultaneously. Both involve facial challenges to the law. They are both overlapping
but not identical.
a. A law is unconstitutionally overbroad if it regulates substantially more speech than the
Constitution allows to be regulated and a person tow whom the law constitutionally can be applied
can argue that it would be unconstitutional as applied to others.
b. A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and
what is permitted. Unduly vague laws violate due process whether or not speech is regulated.
i. Gooding v. Wilson, 1972 – GA statute that prohibited fighting words, specifically the law says
you can’t use “opprobrious or abusive language.” In this case, that language used was “son of
a bitch.” GA law covers fighting words and also seemed to cover other types of speech.
(A) The law was held unconstitutional because it was over broad. The vagueness of law will
cause self-policing although not explicitly told to do so. However, the Court would
uphold the law if, as construed by the GA courts, it was not susceptible of application to
speech, although vulgar or offensive, that is protected by the 1st and 14th amendments.
Court did not find such limiting construction and thus declared the law unconstitutionally
overbroad.
(B) Hamilton: Problem is called a chill. Folks will be hesitant to speak because they would
be afraid as to whether the speech was protected.
ii. Lovell v Griffin, 1938 – The S.Ct. declared unconstitutional an ordinance that prohibited the
distribution of literature of any kind, in any way, without first getting written permission from
the city manager. There was no guidelines for the city manager and it was up to his sole
discretion as to who got permission.
(A) The Court declared the law unconstitutional as an impermissible prior restraint. It was
invalidated on its face because “its character is such that it strikes at the very foundation
of the freedom of the press by subjecting it to license and censorship. The struggle for
freedom of press was primarily directed against the power of the licensor.” Thus
although it was invalidated as a prior restraint, the fact that there was no guidelines for
the city manager contributed to the decision.

Tricia Phillips Page 12 12/8/2010


iii. Near v Minnesota, 1931 – A Minnesota law provided for the abatement, as a public nuisance,
of a “malicious, scandalous, and defamatory newspaper , magazine or other periodical.” The
statute was applied t the Saturday Press that published a series of articles that made
defamatory and anti-Semitic accusations. A trial court issued an injunction that perpetually
enjoined the publication from publishing or circulating “any publication … whatsoever
containing a malicious, scandalous and defamatory matter.”
(A) The Court declared the injunction unconstitutional and said that “it has been generally, if
not universally, considered that it is the chief purpose of the guaranty to prevent previous
restraints upon publication…”
3. Prior restraints: could be imposed based on predictions of danger that would not actually materialize
and thus would not be the basis of subsequent punishments.
a. Landmark Communications, Inc. v. Virginia, 1978 – A state statute created criminal liability for
divulging or publishing truthful information regarding confidential proceedings of a judicial
inquiry board. A newspaper was convicted of violating the statute for accurately reporting that the
Virginia Judicial Inquiry and Review Commission was initiating an investigation of a state court
judge.
i. The court ruled that the statute was unconstitutional. They reasoned that the statute sought to
punish what was at the core of the 1st amendment and the commonwealth’s interest were not
sufficient to justify the actual and potential encroachments of freedom of press.
ii. In order to restrain the publication of confidential information the state must advance
sufficient reason.
b. Nebraska Press Association v. Stuart, 1976 – D was tried for committing six murders in a small
town in Nebraska. The trial court issued an injunction restraining the media from publishing or
broadcasting accounts of confessions or admissions made by the accused or facts strongly
implicating him. The lower court was concerned that otherwise there would be a due process
violation.
i. The S. Ct. found that the lower court could have done other things to try to ensure the privacy
of the trial rather than imposing a prior restraint on the press. They could have instituted a
gag order on the participants in the trial. It seems to indicate that the court must have a
compelling reason to institute a gag order.
ii. 3 requirements that had to be met to justify a gag order on the press to protect a defendant’s
right to a fair trial.
(A) there has to be a showing of extensive publicity without a prior restraint the will
jeopardize the ability to select a fair and impartial jury
(B) it must be determined that “measures short of an order restraining all publication would
not have insured the D a fair trial
(C) even if the first two requirements are met, it must be determined that one would be a
workable and effective method of securing a fair trial.
c. New York Times Co. v. U.S.; U.S. v. Washington Post. Co., 1971 – Both papers published excerpts
from the Pentagon Papers, a top secret 47 volume Defense Dept. history of the Vietnam War. The
US sought an injunction precluding publication of the works on the grounds of national security.
18 days from the first article printed the S.Ct issued a decision. In a 6 to 3 decision, the Court held
that the prior restraint violated the 1st amendment.
i. Strong proponent against prior restraint, even in the name of national security. Must show
a compelling need for an injunction.
V. EQUAL PROTECTION
A. Historical background of race and the Constitution
1. State v Post State v Post, 1845 – Whether New Jersey’s state Constitution free slaves although the
federal government grandfathered in slavery? First, it must be determined whether a state could do
such a thing?
a. Court says that the general language of the NJ Constitution does not implicate that the State
intended to abolish slavery. The state legislature would have had to explicitly state that this was
their intent.
b. At the time the Constitution was drafted there was one understanding and the court would not read
into it any thing other than what it says on its face.

Tricia Phillips Page 13 12/8/2010


i. Hamilton: However, during time of framing, there were early abolitionist groups. Not many
but they were present. Slavery was a compromise between the northern and southern states to
ensure that everyone would ratify the Constitution. Slavery was grandfathered in whereby
Blacks were considered as property.
2. Dred Scott v. Sandford, 1857 – Scott was a slave in Missouri that moved to Illinois. He tried to invoke
IL law, which abolished slavery, to gain his freedom. The court first determines whether he was a
citizen or property. Scott is suing to change his status from property to citizen.
a. Court is saying that the determination of your status as a citizen is up to the state and federal
legislature.
i. Hamilton: What reasons could they have used to establish the opposite result? Could have
announced Scott is being denied his 5th Amendment right of liberty. Could have reinterpreted
the Missouri compromise and given it more bite.
B. The 14th Amendment: All persons born or naturalized in US are citizens. No state shall make a alw that
shall abridge the privileges or immunities of citizens, nor shall any State deprive any person of life, liberty,
or property w/o due process of the law, nor deny any person equal protection of the laws. After the 14th,
minorities fell within the “universe of equality” b/c of the word “citizen.”
1. Plessy v. Ferguson, 1896 – The issue is whether separate but equal is unconstitutional. Plessy is
challenging whether white only compartments in the railroad is constitutional. He is convicted for
refusing to sit in the right compartment.
a. The atmosphere was such that equal protection did not mean same or inclusive. The court held
that the 14th Amendment was not meant to abolish distinctions between the races. Court is saying
that as a legal term of art equality does not mean that there can’t be distinctions or separation.
Court says it is incapable of enforcing social equality although it can achieve political equality. It
looks at itself as a political entity and does not have institutional power to enforce otherwise.
b. Harlan’s dissent: it is not the courts place to endorse separate but equal and rejects the notion that
separate can be equal. Equal should mean same.
2. Brown v Board of Education, 1954:
a. Are the Blacks and Whites students similarly situated for purposes of arguing that they should get
similar treatment? Court is saying within the polity the children are similarly situated in terms of
the need to participate in the polity. As a legal issue, the need for educated citizen makes them
similarly situated. Court rejects as a factual matter that they were similarly situated implicitly.
b. Can they be differently treated? How did the court tie in the 14th Amendment to the education of
children? Education is important to make good citizen and the 14th Amendment address
citizens. Appeals to a broad political need for well educated society.
c. How does the court move from the principals of Plessy to separate is not equal? Inferiority: A
message of being second class citizen b/c Blacks do not or cannot go to white schools. They
acknowledge the psychological impact of separate but equal. Court starts with a political vision
and then use psychological data that explains a better understanding.
3. Brown II, 1955
a. In Brown I, the court ordered that school become desegregated with all deliberate speed.
Absolutely no one paid any attention to the Court. So petitioners came back and asked for the
court to issue a remedy. Instead, the Court empowered the District Cts to enforce the decision in
Brown I on a case-by-case analysis.
i. As a result the district court came up with a lot of options (i.e. busing) but the result was
mostly white flight and years of court battles. Some district courts are still monitoring some
districts.
4. Keyes v School District No. 1 Denver CO, 1973 – The Court found unconstitutional deliberate
gerrymandering by the state to segregate schools.
a. Note the time of the opinion and the location. This is still a hot topic today although, it is
manifested in different arguments.
C. All equal protection cases pose the same question; is the government’s classification justified by a
sufficient purpose?
1. What is the classification?
a. Must define two similarly situated groups that are being distinguished based on some criteria set
by the government.

Tricia Phillips Page 14 12/8/2010


i. NYCTA v Beazer
(A) Three groups: Workers without a drug problem of any kind and methadone users and
illegal drug users. The government has chosen not to hire methadone users and illegal
drug users.
(1) There is no constitutional right to be treated the same. Uses rationality review. Says
that they are not institutionally competent to redraw the line to allow methadone
users to fall into the hired category.
(2) Methadone users as a category do not have the same history as race based
discrimination. The court is not as suspicious as with race.
(a) In equal protection cases, groups that are excluded always have the option to go
to the legislature or in this case the MTA to get the result that was not found by
the court.
(b) The question is which institution is most competent to grant the right sought.
ii. Sometimes the classification exists on the face of the law
(A) Strauder v. West Virginia (1880): D was a black man convicted of murder and tried
before an all white jury in W.V.. A W.V. statute limited jury service to “white male
persons who are twenty-one years of age and who are citizens of the State.” D claimed
the conviction by a jury chosen pursuant to this provision violated the 14th Amendment.
The government stated that the it was trying to set a standard for juries.
(1) Issue: Whether D had a right to trial by a jury selected and impaneled without
discrimination against his race or color…, or whether the State could enact a law
which made it impossible for any person of color to sit on the jury.
(2) Held: The act on its face discriminates against blacks, and therefore violates the
Equal Protection Clause.
(3) Reasoning: Black people were singled out and expressly denied, by the statute, all
rights to participate in the administration of the laws, as jurors, because of their color
and for no other purpose. The 14th Amendment was enacted to prevent the States to
withhold equal protection of its laws to people of color….
(B) Korematsu v United States (1944): Korematsu ignored a military order excluding all
person of Japanese ancestry from certain areas of the West Coast, which resulted in them
being forced to stay in concentration camps. The order applied to citizens as well as
aliens.
(1) Issues: whether is was constitutional for military commanders to order the
evacuation of all person of Japanese ancestry from their homes in the West coast
although, it was certain that many of these individuals were not disloyal to America.
Was it constitution of the US to put the Japanese in internment camps during the
course of WWII?
(2) Holding: Court upheld the constitutionality of the evacuation measures.
(3) Reasoning: there is a compelling need to prevent espionage and sabotage and there
is no other practical or sufficiently rapid way for the military to distinguish the loyal
from the disloyal. The court emphasized that it was upholding the order because it
was wartime and “hardships are part of war.”
(a) All distinction which are premised on raced based distinction require strict
scrutiny. The government used race alone as the basis for predicting who was
threat to national security and who would remain free.
(b) The racial classification was enormously over inclusive – all Japanese-
Americans. And in fact there was no evidence presented to any court of the
threat from any Japanese-Americans only evidence that many of them opted to
be excavated to Japan rather than to pledge loyalty to the U.S.
iii. Sometimes the law is facially neutral but there is a discriminatory impact or effect
(A) however discriminatory impact is insufficient to prove racial or gender classification
must also demonstrate that there is a discriminatory purpose as well.
(B) Washington v. Davis (1976): Involved a suit brought by unsuccessful black applicants
for positions as D.C. policemen. The applicants failed the written test for verbal ability
and reading comprehension proportionately more than did white candidates. The P

Tricia Phillips Page 15 12/8/2010


claimed that this differential impact made the hiring process violative of the equal
protection clause even though those who composed or selected the test had no intent to
discriminate against blacks. The P is saying that you can see that there is discrimination
by looking at the impact (title 7 lets you use impact analysis in private discrimination
case).
(1) Holding: the Court held that racial discrimination violative of the E.P.C. exists
only where it is a product of a discriminatory purpose. While the showing of
disproportionate racial impact is a factor to determine intent, it is not by itself
sufficient to prove discrimination.
(2) Disparate impact by itself is not enough but it can be used in conjunction with other
evidence to prove discrimination.
(3) Court is worried about a flood of cases such as this. The court will not tolerate
blatant discrimination but it will not go further. Not institutionally competent if
there is not a constitutional violation.
(C) Village of Arlington Heights v. Metropolitan Housing Dev. Corp. (1977): Respondents
sought rezoning of a 15 acre parcel of land in village to construct low and moderate
income housing. The request was denied and respondent alleged racial discrimination.
(1) Holding: The court found that Respondent did not meet the burden of proof
necessary to prove discriminatory purpose motivated the decision.
(2) Discriminatory purpose receives strict scrutiny
(a) Impact of the official action is an important starting point.
(b) Absent a blatant pattern targeting race, the court must look to other evidence to
determine intent
(i) The court can look at historical background
(ii) Specific sequence of events leading up to the challenged decision
(iii) Departures from the normal procedural process.
(iv) Substantive departures, particularly where matters deemed important to
decision makers strongly favor a decision contrary to the one reached.
(v) Legislative or administrative history may be relevant.
(D) Loving v. Virginia (1967). The state enacted a miscegenation statute making it criminal
for blacks and whites to marry.
(1) Issue: whether a statutory scheme adopted by the State of Virginia to prevent
marriages between person solely on the basis of racial classifications violates the
Equal Protection and Due Process Clauses of the 14th Amendment. State interpreted
the 14th Amendment to mean that they are able to punish blacks and whites equally
for violations of the statute but it did not bar them from creating the statute. It
contended that the statute had a legitimate state purpose or preserving racial integrity
and preventing “corruption of the blood” which leads to “a mongrel breed of
citizens” and the “obliteration of racial pride.”
(2) Holding: the Court concluded that these statutes cannot stand consistently with the
14th Amendment.
(3) Reasoning: the statute is invalid because it rest on distinctions based on race thus it
demands strict scrutiny review. Even if race-neutral, for the statute to be upheld, it
must be shown necessary to accomplish some permissible state objective,
independent of racial discrimination. (Korematsu)
(E) Washington v. Seattle School Dist. No. 1 (1982). Seattle enacted a plan to undo de facto
segregation in its schools by use of mandatory busing. The State then enacted a law
preventing local school districts from enacting mandatory busing plans.
(1) Holding: B a 5-4 vote, the Court held that state initiative violated equal protection.
The majority opinion held that the reallocation of governmental decision-making
power must be done in a racially neutral manner.
(a) Since the issue of mandatory busing had strong racial overtones, the sate could
not strip local school boards of the right to decide busing matters, yet leave these
boards with control over other local school matters.

Tricia Phillips Page 16 12/8/2010


(b) The state law was unconstitutional because it made it “more difficult for certain
racial and religious minorities… to achieve legislation that is in their interest.”
The law did not mention minorities and applied the same to all races, but the
Court found that it was a racial classification because it “removes the authority
to address a racial problem – and only a racial problem – from the existing
decision-making body, in such a way as to burden minority interests.”
(c) Laws that use race, expressly or implicitly in their test will be treated as a racial
classification even though they burden both whites and people of color.
2. What level of scrutin9y should be applied? 10
a. Discrimination based on race or national origin (and usually for aliens) is subject to strict scrutiny
i. Under this model a law is upheld if it is proved necessary to achieve a compelling government
interest. It is now the case that any affirmative action program that classifies on the basis of
race will be strictly scrutinized. City of Richmond v. J.A. Croson (1989); Adarand
Constructors, Inc. v Pena (1995). So a race-conscious affirmative action plan, whether in the
area of employment, college admissions, voting rights or anywhere else, must be adopted for
the purpose of furthering some “compelling” governmental interest, and the racial
classification must be “necessary” to achieve that compelling governmental interest.
(A) University of California v Bakke: UC set aside 16 of 100 seats for members of minority
group who also suffer from economic degradation. Bakke was a white guy who did not
get into the medical school and sued for his right to enter so he challenged the quota
system.
(1) He wins because quotas are problematic they are too focused on race. Race allowed
a factor but not the only factor in considering an applicant. Race helps to support
constitutional value of diversity.
(2) Court is willing to give some value to diversity but it is not overwhelming. Bakke
vision is that you are capable of coming together and learn of the experiences of
others and empathize.
(3) Determines how far the state and local government can go in using race-conscious
classifications under the 14th Amendment.
(B) Fullilove v Klutznick: Federal program for public construction contracts set aside 10%
contracts for minority groups that were economically or socially disadvantage.
(1) Court allows the Federal government to do that because of their findings that there
was past discrimination and the federal government needed to remedy the situation.
(2) Subjected to strict scrutiny but made it because it satisfied a compelling interest
(eradicating a past discrimination) and the means chosen were the least restrictive
(limited in duration)
(3) Strict scrutiny but if remedying past discrimination government allowed latitude and
race may be considered in implementing entrance reqquirements.

Strict ScrutinyCompelling
• Race based distinctions are never justifiable
• Fundamental right
Religion may sometimes fall under this category but is typically handled under Establishment or Religion ClausesLeast
deferenceIntermediate Scrutiny
Justice Stevens would apply this level across the board to all cases.Important/Substantial
• Burden on the government to introduce during the course of litigation
• Does not have to be present during the time of the creation of the statute/policy
There can be litigimate differences bwtn genders so that the two groups are not similarly situated and cannot always be treated equally.Median
deferenceRationality ReviewRational
• Economic cases tend to fall under this leg of review.
Disabilities or treatment of the disabled are best decided by the legislature – they are more institutionally competent to determine who gets
what.Almost total deference
Government has wide latitude
10
The fight is always under what level of scrutiny the law should be reviewed. If it is strict then it is virtually always fatal to the challenged law.
Thus, the opponents of the law will always try to argue strict scrutiny. If rational review the Court will rarely declare the law unconstitutional.
Thus, the proponents of the law will always argue that rational review is the appropriate level of scrutiny.

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(C) City of Richmond v. J.A. Croson Co. (1989): City enacted a program that set aside 30%
of the city construction contracts for MBE because of the construction contracts granted
by the city, only .67% were granted to minority business. Minority group members
included “African-Americans, Hispanics, Asians, Indians, Eskimos and Aleuts.” City
Council declared the program was to remedy past discrimination against AA in the
Richmond construction industry. Justice O’Connor (joined by Rehnquist, White and
Kennedy), writing for the majority, said any race-based affirmative action plans must be
subjected to the same strict scrutiny as are governmental actions that intentionally
discriminate against racial minorities.
(1) Rationale: there were three distinct reasons why race-conscious affirmative action
plans must be subjected to strict scrutiny:
(a) There would be no way to tell if the classification were really benign or
remedial as opposed to achieving some other objective, such as promoting
racial politics or motivated by illegitimate notions of racial inferiority. Strict
scrutiny would help “smoke out” the illegitimate use of race by insisting on a
compelling governmental objective and a very tight fit between the means
chosen and the objective.
(b) Classification based on race “carry a danger of stigmatic harm” that might
eventually be interpreted by society to mean that the favored group is less
competent and cannot succeed without special protection.
(c) Allowing race-conscious affirmative action will preclude society from ever
achieving its goal of becoming truly race-neutral.
(2) The court found that even if there was discrimination, the remedy was not narrowly
tailored to address remedial objectives. The Council made no showing that race-
neutral means would not include minority participation adequately. Furthermore, the
30% quota was not narrowly tailored to any goal.
(D) Sugarman v. Dougall11
(1) It is an alien distinction, with strict scrutiny, and the court says that the distinction in
this case is unconstitutional. Compelling interest: The law looks arbitrary. Seems
like irrational prejudice
(2) In this case alienage went into the category of immutable characteristic, but this was
the last time it was ever used. Insular b/c they couldn’t vote, therefore immutable.
However, an alien could change his/her status.
ii. It must also show that it cannot achieve its objective through any less discriminatory
alternatives; government has the burden of proof
(A) Grutter v. Bollinger: Justice O’Connor issued the opinion. IMPORTANT TO NOTE IN
THESE CASE THE REVIEW WILL BE CONTEXT. Law school sued by white
applicant claiming that the school’s affirmative action policy violated her equal
protection. The school does not have a quota but they do use race as a determinant factor
for admitting students. Although the school did not use a quota they say they have a
critical mass.
(1) Level of scrutiny is strict however, the educational institution is allowed to figure out
what is the best way to get a diverse student body (deference) but prefers a race-
neutral approach.
(a) A way to meet the schools objectives is to disclaim quotas and say that you want
to acquire a critical mass.
(b) This is pretty similar to the Adarand decision but there the contractors quota is
held unconstitutional.
(B) Gratz v. Bollinger: University used actual quota system and the court says
unconstitutional. At the undergrad level used points system.

11
Insular Minority: Footnote 4 of Carolene Products: If you have an instance of an insular and discrete minority (a group that can’t have an
influence on the political process) then you have strict scrutiny. The attempt was to say that race is an immutable characteristic (you can’t do
anything about it), and those designated by race are an insular minority. Therefore you can’t invidiously discriminate on the basis of race.

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(1) If a school could prove prior discrimination then the use of a quota system to remedy
the prior past discrimination would be acceptable.
b. Discrimination based on gender typically gets intermediate scrutiny
i. The law is upheld if it is substantially related to an important government purpose
(A) thus the governments interest need not be compelling but substantial enough to achieve
the end being sought. Under this leg the government has the burden of proof.
(1) Reed v Reed (1971): men and woman treated differently for purposes of inheriting
intestate. The court uses rational review and declares unconstitutional.
(2) Frontiero v Richardson (1973): law that allowed male members of the uniformed
services to automatically claim his spouse as a dependent thereby getting greater
quarter allowance. However, female members could make such claims only if the
could demonstrate that in fact her husband was dependant on her.
(a) Justice Brennan says that like racial classification, this should be subject to close
scrutiny.
(i) Says sex, like race is an immutable characteristic.
(ii) Did not believe that the provision survived strict scrutiny.
(3) Craig v Boren (1976): a state statute allowed girls 18 to purchase alcohol but boys
had to wait until they were 21. The state claims that it was for traffic safety because
there was a in the group 2% of the boys as opposed to .18% of the girls were arrested
for drunk driving.
(a) The court uses intermediate scrutiny. Although rationality is the normal default
review under Equal Protection except for Race which uses strict scrutiny.
(b) To smoke out possible discriminatory provisions that may be escaped by
rationality review.
(c) Legislature does not have carte blanc to discriminate between gender becase it is
an immutable characteristic.
(i) Harlan and Stevens would second guess the court. Does the legislature
before the court actually appear rational?
(d) After this case all gender based discrimination cases receive intermediate
scrutiny.
c. Anything not subject to strict or intermediate scrutiny yet challenged under equal protection
must meet, at a minimum, the rational basis review.
i. Under this leg, a law will be upheld if it is rationally related to a legitimate government
purpose.
(A) the objective need not be compelling or important but just something that the government
legitimately may do.
(B) the means chosen need only be a rational way to accomplish that end. Here the
challenger has the burden of proof.
(1) Railway Express Agency v. New York (1949): Two groups were advertising vehicles
and vehicles that had advertisement on them although not used for the purpose
exclusively. New York’s defense is that it created distraction and created more
congestion.
(a) Low level scrutiny because self-owned businesses are not a suspect class.
(2) Williamson v. Lee Optical (1955): Legislature made a distinction between optician
and optometrist or ophthalmologist. The second category were allowed to sell
prescription glasses but the former was not.
(a) The S.Ct. held, no you don’t. Take it back to the legislature. Will not get
involved in economic challenges.
(3) City of Cleburne v. Cleburne Living Center: If it is an immutable characteristic
that cannot be controlled it must be intermediate scrutiny or strict. Here the feeble
minded were not permitted to occupy a home in a certain area because of there
status. The group was called quasi-suspect class which requires rational review.
However, it appears as though it were intermediate review. The community was not
allowed to displace the members because the governments reasons were not rational.
The city was engaged in irrational prejudice so the law falls.

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(a) There is no other example of this type of review because disability review under
rationality but it got intermediate review. Court differed to Stevens this one
time.
3. Does the particular government’s action meet the level of scrutiny?
a. Under strict scrutiny the end must be deemed compelling of the law to be upheld;
b. For intermediate scrutiny the end has to be regarded as important; and
c. For the rational basis test there just has to be a legitimate purpose.
i. In evaluating the relationship of the means to the particular end must focus on the degree to
which a law is under or over inclusive.
(A) under inclusive: does not apply to others who are similarly situated to those whom the
law applies
(B) over inclusive: aw applies to those who need not be included in order for the government
to achieve its purpose.
VI. IMPLIED FUNDAMENTAL RIGHTS UNDER EQUAL PROTECTION
A. Government infringement on fundamental rights are subject to strict scrutiny12
1. Fundamental rights are protected under the due process clauses of the 5th and 14th and/or the equal
protection clause of the 14th. The 9th was mentioned13 once but is a week argument and rarely used.
a. The difference btwn due process and equal protect is how the constitutional arguments are framed.
i. DP: issue is whether the government’s interference is justified by a sufficient purpose
(A) If the law denies the right to everyone use DP
ii. EP: issue is whether the government’s discrimination as to who can exercise the right is
justified by a sufficient purpose.
(A) If the law denies the right to some but not others use EP for discrimination or DP for the
violation of the right.
b. Framework for analyzing fundamental rights.
i. Is there a fundamental right?
(A) Originalists: limited to those liberties explicitly stated in the text or clearly intended by
the framers.
(B) Non-originalists: the Court can protect rights not enumerated in the constitution or
intended by the drafters.
(C) Court often looks at the history and tradition in deciding what rights not mentioned in the
text are fundamental.
(D) Natural law may help to decide what is a fundamental right.
(E) The Court may look at the moral consensus of the times.
ii. Is the Constitutional right infringed?
(A) The Court considers the directness and the substantiality of the interference.
(1) Look for an out and out denial or the burdening of some rights.
(a) If a burden, ask under what circumstances is the government’s action an
infringement.
iii. Is there a sufficient justification for the government’s infringement of a right?
(A) If it’s a fundamental right the government has to produce a compelling interest.
(1) A truly vital interest.
(B) If not, only a legitimate purpose is required.
iv. Is the means sufficiently related to the purpose?
(A) Under S.S. must ask if the law is necessary and if it is narrowly tailored.
(B) Under RBR, gov’t need only prove the means are reasonable way to achieve its goals and
thus not required to use the least restrictive alternatives.
B. If a right is not fundamental, then it gets rational basis review; this applies to claims under both equal
protection and due process
C. PRIVILEGES OR IMMUNITIES CLAUSE: § 1 of the 14th Amendment provides that “no State shall make
or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

12
Carolene Products, the judiciary will defer to the legislature unless there is discrimination against a discrete and insular minority or
infringement of a fundamental right.
13
Grizwold v Connecticut, Justice Goldberg, in a concurring opinion, used to justify invalidating a law prohibiting the use of contraception.

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1. The Slaughter-House Cases (1873): Seem to say the 14th Amendment do not apply to the states ability
to discriminate against its own citizens in business matters. Louisiana passed a statute that allowed a
monopoly of slaughter houses in the city and forced certain butchers to use these slaughter houses.
Butchers argue a violation of the privileges and immunities.
a. Art. IV interpreted to be that the state can’t discriminate against other state citizens. Court rules
that Art. IV does not apply to intrastate privileges and immunities because of institutional
competence (courts don’t want to get involved in second guessing the state government),
federalism (the state have independence to define the laws of its own citizens). Privileges and
immunities on a state level should be determined by the state.
b. Case is still governing law but it doesn’t have much force. But this gives you a sense of how the
due process clause becomes so meaty because the early attempts to use the privileges and
immunity clause where shot down.
D. INCORPORATION: Bill of rights only applicable to the federal gov’t. Therefore, the 1st and 5th only
applied to the federal gov’t and not the states. The 9th and 10th open up possibility of implied rights that
can be incorporated. (e.g. the 9th, reserves rights not enumerated to the people, 10th reserves all rights not
granted to the fed or prohibited to it by the States, to the the people.
1. Barron v City of Balitmore (1833)
a. Barron claims street construction made the water too shallow for vessel and thus, destroyed his
wharf. Court rejected contention the 5th restrains the legislative power of the State because the
Amendment does not extend to the states it is solely for the federal government.
i. Hamilton: When the Amendments were drafted there was some idea that some would be
applied against the state. The anti-federalist would not ratify the bill of rights if it applied to
the states. It was very clear in 1789 and 1791 that the bill of rights do not apply to the states.
2. Murray v Hoboken Land & Improvement Co. (1856)
a. Due process was broader than just procedure. This case opened it up to include the common law.
What are the limitations going to be? Where do you draw the line? Justice Curtis says look to the
common and statute law of England.
3. Twining v New Jersey (1908)
a. A state court prosecution in which the jury was instructed that it might draw an unfavorable
inference against the D from their failure to testify. Court determined that the privilege and
immunities clause did not incorporate the privilege against self-incrimination.
4. Palko v Connecticut (1937)
a. There is no fundamental right to a trial by jury nor is there immunity from self-incrimination.
5. Adamson v. California (1947):
a. Prosecution in state trial was able to comment upon the D’s failure to take the stand. The right of
self-incrimination was not incorporated in the 14th Amendment. Protection against self
incrimination is not a fundamental right.
6. Duncan v Louisianna (1968)
a. 6th right to trial by jury applicable to the states via 14th DPC. Fundamental right are incorporated
b/c they predates ratification, they “lie at the base of all our civil and political institutions … it is
basic in our system of jurisprudence … and essential to a fair trial…”
VII.Substantive Due Process/Economic Interests: whether the gov’t has an adequate reason for taking away
a person’s life, liberty, or property. In other words, is there a significant justification for the gov’t’s
action? Whether there is such a justification will depend on the level of scrutiny used.
A. Lochner v New York (1905): A NY statute that limited the amount of hours bakers could work to
60hrs per week b/c the conditions were unhealthy. Workers argued that they have a freedom to
contract as part and parcel of the substantive right of due process. They use the liberty and property
rights of the 14th Amendment. There is no plain language, nothing in intent of framers. They use
reasonable (rational) review. The Court viewed the state as acting paternalistic and said the individuals
should be free of the State acting paternalistic. The court is acting as the legislature. It has determined
that it knows better what is best for the public good than the legislature. But the Court says it is
drawing Constitutional lines but those lines determine how much latitude the legislature gets.
B. Nebbia v New York (1934): NY tried to regulate the cost of milk to make sure that producers
would not lower their standards of what they produced. Nebbia argued that this was unconstitutional
because it destroys his liberty to contract.

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1. However, the court held that neither property rights nor contract rights are absolute. The
legislature may limit an industry to serve the public good. The court is seeding its power over to
the legislature to determine these types of issues.
a. Court is distinguishing from Lochner, individual rights over the power of the legislature
to determine the public good. Thus, the Court is allowing the legislature to determine what is
required for the public good (institutional competence argument).
b. A right that was never evident in the Constitution begins to disappear. These cases deal
with conflicting world views. Institutional competence is the debate between the Court and
the Executive at this time. Who is more competent to determine the public good?
C. West Cost Hotel (1977): this law instituted a minimum wage for women to protect women from
exploitation by employers. The court is saying that the market if it was working in the Lochner era did
not survive through the depression. And thus, in this situation there is no equal level to contract with
respect to women and employers.
1. The major role of the Court is rights determination and statutory interpretation.
D. United States v Carolene Products Co. (1938): Two congressional committees found that filled
milk was not as nutritious as condensed milk. They enacted the Filled Milk Act which prohibited any
person to ship filled milk in interstate commerce. The FM producers challenged the Act under the due
process clause. The Court used rationality review and upheld the Act. The Court determined that
under economic distinctions they will not second guess the legislature.
1. Strongest indication that the right of contract is no longer stronger than the right of the
legislature to protect the public good.
2. With respect to economic legislation, the equal protection clause added to the due process
clause gives virtually no protection.
a. Equal protection and due process are alternative arguments to use in a particular arena.
But when it comes to economic regulations neither give much bite.
VIII. Voting: Nowhere in the constitution does it say that voting is a substantive due process right but it
seems to be implicit.
A. Harper v Virginia State Board of Elections (1966): Court invalidated a state poll tax of $1.50.
Poll tax to pay before you vote. Restricts the number of people who could vote but it was a pretext for
discrimination because the state knew that the group that you did not want to participate in the process
did not have the money to pay the tax. However, on its fact it was not race based so the equal
protection clause would not be much help. You would have to go to a pre-text theory but that would
require lots of evidence that they did not have.
1. The court says on any level of tailoring this attempt fails. Wealth or fee payment has no
relation to voting requirements.
a. Thus, the court is saying that there is a right to vote and they are not allowed to be
encumbered by a fee requirement.
i. The right to vote can be burdened but it cannot be conditioned by a condition
utterly unrelated to voting.
ii. Right to vote is a fundamental right and thus it gets strict scrutiny under the
Equal protection clause. In addition, substantive due process allows the same amount of
coverage.
(A) If it is a wealth classification low level scrutiny they loose. But, by using
fundamental right it gets strict scrutiny and under due process it would loose any
level of scrutiny because under rationality review there is no basis to institute the tax.
B. Kramer v Union Free School District (1969): A NY education law limited individuals who could
vote in matters regarding school boards to parents of school children and property owners (they pay
taxes and have a stake in the process).
1. Theory of the case is Equal Protection: divide in the law are people who don’t have
property or children and those that do. The question is whether this distinction is constitutional?
IX. Substantive due process you are always looking for a category (right to vote, right to contract, right to
work); with respect to equal protection is the type of distinction the government is making getting strict,
intermediate or rationality view.
A. Reynolds v Sims (1964): apportionment, voting districts lacked proportionality. The minority
district was getting majority representation.

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1. Case does not say there has to be immediate reapportionment. You can institute a system
that allows census to determine how to apportion representatives.
2. However, under equal protection “one man, one vote” would require immediate action.
But because the case is about apportionment and not about a persons right to vote, then the system
dependent on the census is allowed.
a. Hypo: election in FL. Jurisdiction where votes counted differently and in some counties
a hanging chad is a vote while others a hanging chad is not a vote. The looser challenges the
law and under one person one vote he should win. Bush v Gore the issue is if you have cast a
vote identically to the person across town and their vote counts but yours do not then it
violates one man one vote.
B. City of Mobile v Bolden (1980): election at large every body votes and the people with the most
votes win. This can be a disparate impact case although the impact is far more clear than under
Washington v. Davis.
X. Privacy: which provision provides for this right? It is not expressly provided for so go to due process.
A. Penumbra of rights that the bill of rights cast that is implicit to all.
1. Grizwald v Conn., was about doctor involved with Planned Parenthood in CT to
distribute contraception to married people to stop conception. He was committed of conspiring to
commit the crime of doing what he was doing. CT had a statute that you could not use
contraception.
a. The court establishes a zone of privacy. Where did the zone come from and what are its
limits?
i. The facts of this case, speaks about marriage.
ii. Marriage is older than the bill of rights and its mere existence proves the
necessity for a zone of privacy.
iii. None of the justices agree about what is the zone of rights. They try to make it
explicit based on their intuition that it must be there.
b. Married couples seeking contraception are allowed under the zone of privacy right.
2. Roe v Wade: challenge to the TX statute that made it a crime to obtain an abortion. Did
the state violate her constitutional right?
a. Opinion drafted while Blackmun was at the Mayo Clinic where he sought opinions from
medical doctors.
b. There is a right to abortion to choose in consultation with her doctor. No right to self-
inducement of the abortion. But there is a time line and the states have interests all along the
time line.
c. The fetus at some point to become viable (meaning the fetus can survive separate from
the mother).
i. Within the first trimester the state is prohibited from criminalizing abortion.
(A) Very little deference because the mother’s interest outweighs the fetus.
ii. In the second trimester the states interest increases in prohibiting the abortion as
the fetus develops
(A) Somewhat less deference
iii. Once you get to the 3rd trimester the state may be trying to protect a child/baby
(A) Deference to the state
iv. However viability changes as technology increases.
d. At the same time, the state is interested in protecting the health of the mother.
i. The states interests in the mother decreases as the pregnancy goes along.
e. What is the theory of this case; the source of the constitutional right for a woman to
choose with her doctor the choice to have an abortion in different trimesters?
i. They use it all: the liberty clause; 9th Amendment; due process.
(A) This is right that can be regulated just like the first amendment.

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